Indigenous Peoples, Marine Space and Resources, and International Law: The Interaction Between International Human Rights Law and the Law of the Sea 1032151595, 9781032151595

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Indigenous Peoples, Marine Space and Resources, and International Law

This book addresses the rights of indigenous peoples to marine space and associated marine resources under international law. Examining the rights of indigenous peoples relating to marine space and marine resources both in international human rights law and the law of the sea, the book provides an in-depth critical analysis of the existing legal framework whilst identifying the gaps and possible further mechanisms for recognizing the rights of indigenous peoples to marine space. The book addresses three main issues: (i) the extent to which international law recognizes and protects the rights of indigenous peoples in relation to marine space and marine resources; (ii) if and how the law of the sea and international human rights law pertaining to the rights of indigenous peoples to marine space and marine resources interact; and (iii) whether and to what extent the law of the sea regime limits the capacity of coastal States to recognize and implement the rights of indigenous peoples relating to marine space and resources. In response, and in a context where indigenous marine rights are under increasing threat, the book develops an important critical theoretical and methodological approach that moves beyond the current doctrinal focus of much existing work in this area. The book will appeal to academics, researchers, and practitioners in the areas of indigenous peoples and the law, international law, the law of the sea, and human rights. Endalew Lijalem Enyew is a Senior Researcher at the Norwegian Centre for the Law of the Sea, Faculty of Law, UiT – The Arctic University of Norway. Endalew holds a PhD in Law from UiT – The Arctic University of Norway in 2020, an MPhil in Peace and Conflict Transformation from University of Tromsø in 2013, LLM in Business Law from Addis Ababa University in 2011, and LLB from Hawassa University in 2009.

Part of the Indigenous Peoples and the Law series series editors Dr Mark A. Harris University of British Columbia, Canada Professor Denise Ferreira da Silva University of British Columbia, Canada

Dr Claire Charters University of Auckland, New Zealand Dr Glen Coulthard University of British Columbia, Canada

A GlassHouse book

For information about the series and details of previous and forthcoming titles, see www. routledge.com/law/series/INDPPL

Indigenous Peoples, Marine Space and Resources, and International Law

The Interaction Between International Human Rights Law and the Law of the Sea

Endalew Lijalem Enyew

First published 2024 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business a GlassHouse book © 2024 Endalew Lijalem Enyew The right of Endalew Lijalem Enyew to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-032-15159-5 (hbk) ISBN: 978-1-032-15161-8 (pbk) ISBN: 978-1-003-24277-2 (ebk) DOI: 10.4324/9781003242772 Typeset in Sabon LT Pro by Apex CoVantage, LLC

Contents

Preface

xii

PART I

Setting the stage: introduction and historical overview

1

1

3

Setting the stage 1. Introduction 3

2. Indigenous peoples, marine space, and marine resources:

relations and significance 4

2.1 Marine living resources as a means of subsistence 6

2.2 Food for the soul: cultural and spiritual significance

of marine space and resources 7

3. Contemporary challenges to coastal indigenous

peoples 10

4. The rights of indigenous peoples to marine space and

marine resources: a blind spot in international law? 15

5. Aim of the book 17

6. Situating the book: theoretical and methodological

approaches 18

6.1 TWAIL: a critical theoretical lens on international

law 19

6.1.1 The dual aims of TWAIL 21

6.2 A human rights-based approach to natural

resources 24

6.3 TWAIL-driven methodological approaches 25

7. Structure of the book 29

vi

Contents

2

The evolution of international law in relation to the rights of indigenous peoples to lands, marine space, and natural resources: a historical sketch 1. Introduction 30

2. Indigenous peoples in pre-classical international law:

acquisition of indigenous lands and territories through

conquest and ‘just war’ 31

3. Indigenous peoples in the period of classical international

law 35

3.1 Emergence of ‘the law of nations’, and indigenous

exclusion 36

3.2 Decoupling natural law from the law of nations:

further exclusion of indigenous peoples 37

3.3 Classical international law doctrines related to the

dispossession of the lands, marine spaces, and natural

resources of indigenous peoples 38

3.3.1 The doctrines of terra nullius and effective

occupation 38

3.3.2 The doctrine of freedom of the sea: mare

nullius 44

3.4 Intermediate conclusion 48

4. Indigenous peoples in the UN era 49

4.1 The UN and its decolonization process 49

4.1.1 ILO Convention 107: integration as its basic

policy 52

4.1.2 Rejection of the doctrine of terra nullius: Western

Sahara Case as a pioneer 54

4.1.3 Old wine in new bottles: continued application of

terra nullius and mare nullius by other means 55

4.2 Development of international human rights law 58

4.2.1 Adoption of general global and regional human

rights instruments 59

4.2.2 Evolution of indigenous-specific human rights

instruments 60

5. Conclusion 66

30

Contents

vii

PART II

International human rights law and the rights of indigenous peoples to lands, marine space, and natural resources 3

International human rights law and indigenous peoples: norms relevant to the rights to lands and natural resources 1. Introduction 71 2. The right to self-determination: an evolving grand human right norm 71 2.1 Indigenous peoples as holders of the right to self-determination 74 2.1.1 Practices of treaty monitoring and regional human rights bodies with respect to the rights of indigenous peoples to economic self-determination 76 3. The right to cultural integrity 82 3.1 The collective dimension of indigenous peoples’ culture 85 3.2 The material basis of culture 88 3.3 Scope of States’ obligations relating to the right to culture 93 4. Property rights to lands and natural resources 94 4.1 Property rights to traditional lands under indigenous­ specific human rights instruments 95 4.2 Property right to traditional lands under general human rights instruments and practices of UN treaty monitoring and regional human rights bodies 99 4.3 Property rights over natural resources pertaining to indigenous lands 104 5. The right to equality and non-discrimination 107 5.1 Non-discrimination as a right to differential treatment 110 6. The right to consultation and participation 113 6.1 Beyond consultation: the right to free, prior, and informed consent 116 7. Conclusion 120

69 71

viii

4

Contents

Application of international human rights law to the rights of indigenous peoples in relation to marine space and marine resources

122

1. Introduction 122 2. Applicability of human rights law to marine space 122 3. Human rights norms applicable to the rights of indigenous peoples to marine space and marine resources 128 3.1 The right to self-determination: an overarching right to the governance of marine space and resources 128 3.2 Access to marine areas and harvesting of MLRs as a cultural right 130 3.2.1 Threshold of illegitimate interference to the right to culture 134 3.3 The right to marine space and resources as a property right 136 3.3.1 Unpacking the meaning of Article 13(2) ILO Convention: indigenous ‘land’ includes marine space 137 3.3.2 Limits to the right to property over marine space and MLRs 140 3.4 Non-discrimination in property rights over marine space and resources 141 3.5 Procedural safeguards: the right to consultation and FPIC 146 4. Conclusion 149 PART III

Law of the sea and its interaction with the rights of indigenous peoples 5

Rights and obligations of coastal states with respect to marine living resources under the law of the sea 1. Introduction 153 2. Development of the law of the sea 154 2.1 Codification of the law of the sea 155 3. Rights and obligations of coastal States with respect to MLRs in the different maritime zones 157 3.1 The rights and obligations of coastal States in internal waters and the territorial sea 158

151 153

Contents

ix

3.1.1 Limitations on the sovereignty of coastal States

over the territorial sea 160

3.2 The rights and obligations of archipelagic States in

archipelagic waters 161

3.3 The regime of the exclusive economic zone 164

3.3.1 The sovereign rights of coastal States in the

EEZ 165

3.3.2 The obligations of coastal States in the EEZ 169

3.3.3 Species-specific conservation and management

obligations 177

4. The freedom of fishing on the high seas and the duties of

high seas fishing States 179

4.1 The 1995 Fish Stocks Agreement 182

5. Conclusion 183

6 Interaction between the human rights of indigenous peoples

and the law of the sea 1. Introduction 185

2. General considerations on the interaction between

human rights law and the law of the sea 186

3. Mechanisms for interaction between human rights law

and the law of the sea 193

3.1 Express cross-referencing, relationship, and

applicable law clauses 193

3.2 Systemic integration: Article 31(3)(c) of the

VCLT 198

4. Specific areas of interaction between the rights of

indigenous peoples and the law of the sea 203

4.1 Coastal State powers in the internal waters and

indigenous rights 203

4.2 The obligation of coastal States to respect the right/

freedom of navigation of other States and the rights of

indigenous peoples 205

4.2.1 IMO’s PSSA regime: a special approach to

manage navigation 214

4.3 The duty of coastal States to manage and conserve

MLRs and the rights of indigenous peoples 218

4.3.1 The FAO Fisheries Instruments 224

4.4 Traditional fishing rights of indigenous peoples of

neighboring States 227

5. Conclusion 228

185

x

7

Contents

The rights of indigenous peoples to harvest marine mammals

231

1. Introduction 231 2. What constitutes a marine mammal? 233 3. The LOSC rules on the conservation of marine mammals 234 3.1 The impact of Article 65 of the LOSC on the rights of indigenous peoples to harvest marine mammals 236 4. General conservation-focused international instruments 239 4.1 Regulation of trade in products of marine mammals for conservation purposes and indigenous rights: the rules of CITES 239 4.2 Conservation of migratory species of marine mammals and rights of indigenous peoples: the rules of the CMS 247 5. Agreements on the conservation of specific marine mammals and indigenous harvesting rights 251 5.1 Historic agreements on the conservation of Bering fur seals 251 5.2 The international convention for the regulation of whaling 253 5.2.1 Aboriginal subsistence whaling: meaning and evolution 255 5.2.2 Objectives of ASW and processes for setting catch limits 259 5.2.3 Limitations of the ASW regime 263 5.2.4 Towards a human rights-based ASW: the pay-off 270 5.3 The NAMMCO agreement 274 5.4 The 1973 agreement on the conservation of polar bears 278 6. Conclusion 283 8

Beyond international maritime boundaries: traditional fishing rights of indigenous peoples within maritime zones of other states 1. Introduction 285 2. Meaning and basic characteristics of TFRs 286 3. Status of TFRs in the pre-LOSC regime: vested rights recognized under customary international law 289

285

Contents

xi

4. TFRs under the LOSC and the jurisprudence of

international courts and tribunals 293

4.1 TFRs within archipelagic waters 293

4.2 TFRs within the territorial sea 297

4.2.1 The award in the Eritrea/Yemen Arbitration 297

4.2.2 The award in the Chagos Arbitration 303

4.2.3 The award in the South China Sea

Arbitration 307

4.3 TFRs in the EEZ 310

4.3.1 The award in the Barbados/Trinidad and Tobago

Arbitration 313

4.3.2 The ICJ’s decision on TFRs in the 2022

Nicaragua v Colombia case 315

5. Indigenous peoples as beneficiaries of TFRs 319

6. State practice on bilateral maritime boundary

delimitation agreements dealing with TFRs of indigenous

peoples 323

6.1 The 1974 memorandum of understanding between

Australia and Indonesia and its amendment 323

6.2 The Torres Strait Treaty 327

6.3 Maritime boundary delimitation agreements between

Indonesia and PNG 331

6.4 Maritime boundary agreements between PNG and

the Solomon Islands 334

6.5 Intermediate conclusion on State bilateral practice on

TFRs 337

7. Conclusion 339

9

Conclusions

341

1. Growing recognition and protection of the rights of

indigenous peoples to marine space and marine resources

under international human rights law 341

2. Towards indigenization of the law of the sea 344

2.1 Interaction between the law of the sea and the rights

of indigenous peoples 344

Index

350

Preface

This book is based on my PhD dissertation, which I defended in May 2020. The dissertation benefited from the support, guidance, and encouragement of several persons. I  would like to extend my gratitude to my supervisors, Professor Nigel Bankes and Professor Susann Funderud Skogvang, for being great mentors and true inspirations and for providing me with their sus­ tained intellectual guidance and constructive feedback throughout. I am also grateful to members of the PhD evaluation committee, Professor Geir Ulf­ stein, Professor Racheal Lorna Johnstone, and Professor Jon Petter Rui, for their thorough review of my dissertation and the constructive feedback that follows. The PhD was possible due to the financial support and the vibrant and cultivating working environment of the K.G. Jebsen Center for the Law of the Sea (JCLOS), now renamed the Norwegian Center for the Law of the Sea (NCLOS), and the Faculty of Law, UiT – The Arctic University of Nor­ way. I would like to thank both institutions in the person of Professor Trude Haugli and Professor Lena Lauritsen Bendiksen, the successive deans of the Faculty during my PhD fellowship, and Professor Tore Heriksen, the for­ mer leader of JCLOS and NCLOS and current dean of the Faculty of Law. I am equally grateful to Christin Skjervold – our Guardian Angel – for her unreserved support and guidance, almost on a daily basis, with respect to all administrative matters. My sincere thanks further go to Professor Ingvild Ulrikke Jakobsen, the former vice dean for research and current leader of NCLOS, and Liv Johanne Martinsen, the PhD consultant, for all their con­ stant guidance throughout the PhD program. I  cherish all the interactions I  have had with and benefited from my past and present colleagues at the Faculty and NCLOS/JCLOS. I would like to thank all of them for the encour­ agement, company, and support that kept me going throughout the PhD fellowship and during my hard times in particular. I  would like to specifi­ cally thank Professor Margherita Poto for always casting a positive energy at times of difficulty; and members of the Sami and Indigenous Rights Research Group of the Faculty of Law, UiT–The Arctic University of Norway, for

Preface

xiii

embracing me and sharing their extensive knowledge and expertise on indig­ enous peoples’ law. The conversion of the PhD dissertation into this book has undergone sig­ nificant changes and updates and has significantly benefited from the support of several persons. I am especially grateful to the anonymous reviewers for their resourceful feedback, which helped the book to take its current shape. I am also thankful to the Faculty of Law, UiT–The Arctic University of Nor­ way, for the financial support for the language editing of the manuscript and to Dr. Kristine Elfrida Dalakar for her invaluable assistance in the language editing of the final manuscript. Last but not least I am very grateful to my family, where my ‘little world’ is: my beloved wife, Genet Mulugeta (ገኒኮዬ), and my beautiful children, Maya (አይኔ፣ ማያ ያሚ) and Barkon (the superhero), for their understanding and patience when I was not able to spend golden family time with them as much as they wanted and disserved. I dedicate this book to them and to the memory of my late parents, Yikanu Lijalem, and brother Ashenafi, who ‘left me’ during the PhD period. Endalew Lijalem Enyew Tromsø, Norway June 2023

Part I

Setting the stage Introduction and historical overview

Chapter 1

Setting the stage

1. Introduction This book explores the rights of indigenous peoples1 relating to marine space2 and marine resources under international law. In undertaking this task, the book examines the law of the sea in conjunction with the interna­ tional human rights law pertaining to indigenous peoples, and it identifies gaps in the existing legal framework and provides possible mechanisms for further development that would adequately recognize the rights of indig­ enous peoples. Yet, the term ‘marine resources’ is a broad term that com­ prises both the living and non-living resources found in the marine areas. Marine living resources (MLRs) include various types of fish, mammals, and plants (seaweeds) located on the seabed, ocean floor, and in the water col­ umn.3 Non-living marine resources include resources located on the seabed, its sub-soil, surface waters, and air space above the surface (for example, the production of wind energy) of the ocean space.4 Though there seems to be potential for asserting the rights of indigenous peoples in relation to non-living marine resources, this book limits itself to addressing the rights of indigenous peoples relating to MLRs to which indigenous peoples have traditional and cultural attachment. The rights of indigenous peoples with respect to non-living marine resources of the seabed and sub-soil, such as minerals, oil, and gas, are, thus, beyond the scope of this book. This, how­ ever, is not to suggest that indigenous peoples do not have a right with respect to such non-living resources; rather, this is only said to delimit the focus of the book. 1 The terms ‘indigenous peoples’, ‘native peoples’, and ‘aboriginal peoples’ are often used inter­ changeably in the literature. This book follows the same definitional approach. 2 The terms ‘marine space’ and ‘marine areas’ are used interchangeably throughout this book. 3 United Nations Convention on the Law of the Sea (LOSC), concluded at Montego Bay on 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994), Art 56(1). See also N Matz-Luck and J Fuchs, ‘Marine Living Resources’ in DR Rothwell et al. (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 491, 492–493. 4 LOSC, ibid.

DOI: 10.4324/9781003242772-2

4

Setting the stage

This introductory chapter sets the stage, providing a general background to the topic of the book by describing the intimate link that coastal indigenous peoples have with traditionally used marine space and marine resources, as well as the multifaceted challenges that such peoples face. The chapter also outlines the aims of the book, describes the positioning of the book from a theoretical and methodological perspective, and finally, sets out the structure of the book to offer the readers a roadmap going forward. 2. Indigenous peoples, marine space, and marine resources: relations and significance Indigenous peoples can be understood as culturally distinct peoples who are ‘the living descendants of pre-invasion inhabitants of lands [and terri­ tories] now dominated by others’.5 However, there is neither an exhaustive list nor a single and universally accepted definition for ‘indigenous peoples’ under international law. Since the situation of indigenous peoples varies from region to region and from State to State, it is difficult to provide a single definition that encompasses all local variations and different historical and cultural backgrounds. Attempts to provide a single definition run the risk of excluding groups of peoples who might be considered to fall within the scope of the term ‘indigenous’. Nonetheless, the United Nations (UN) Study on the Problem of Discrimination against Indigenous Populations (the Cobo Study)6 and the International Labor Organization’s (ILO) Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169)7 provide four non-cumulative parameters to identify indigenous peo­ ples. These parameters are: (i) maintaining ancestral roots with pre-invasion and pre-colonial societies (i.e., maintaining their connection with ancestral lands and territories); (ii) constituting a non-dominant and marginalized sec­ tor of the society; (iii) having a distinct culture and determination to preserve, develop, and transmit this culture to the next generation; and (iv) self­ identification as an indigenous people.8

5 J Anaya, Indigenous Peoples in International Law, 2nd edn (OUP 2004) 3. 6 JRM Cobo (Special Rapporteur), UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination against Indigenous Popula­ tions (the Cobo Study), Final Report (last part), UN Doc E/CN.4/Sub.2/1986/7/Add.4 (1986). 7 Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Con­ vention 169), concluded at Geneva on 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991). 8 JRM Cobo (Special Rapporteur), Study of the Problem of Discrimination (n 6), [379]; ILO Convention 169, ibid., Arts 1(1(b))  & 1(2). For a detailed discussion on the definition of ‘indigenous peoples’, see J Castellino and C Doyle, ‘Who Are ‘Indigenous Peoples’?: An Examination of Concepts Concerning Group Membership in the UNDRIP’ in J Hohmann and M Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commen­ tary (OUP 2018) 7–37.

Setting the stage

5

Thus, historical attachment to a particular territory and traditionally used natural resources is one of the main defining elements of ‘indigenousness’ and is a central feature of the unique identity of indigenous peoples. In other words, despite the existence of a wide variety of indigenous peoples around the world, they all share a common feature of having a strong attachment to their traditional lands, territories, and natural resources as a principal source of their economic, social, cultural, and spiritual survival.9 In this respect, the seminal Cobo study emphasized the importance of understanding ‘the deeply spiritual special relationship between indigenous peoples and their lands as basic to their existence as such and to all their beliefs, customs, traditions and culture’ to properly recognize indigenous land rights.10 This special and deeply felt economic, cultural, social, and spiritual nexus between indigenous peoples and their lands and territories includes marine space and marine resources. Contrary to the false image of indigenous peo­ ples as ‘lawless’ prior to European contact, coastal indigenous peoples have had traditional laws regulating the use of marine space and resources, which are articulated through sacred teachings, traditional practices, rituals, and stories.11 Emphasizing their intimate connection and sense of belonging to the sea, many coastal indigenous peoples identify themselves as ‘saltwater peoples’,12 peoples with ‘sea country’,13 or ‘sea peoples’.14 Fishing, hunting,

9 See J Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (Transnational Publishers 2006) xiv, observing that a strong relationship with lands, territories and natural resources is ‘a common denominator’ that identifies all indigenous peoples. 10 JRM Cobo (Special Rapporteur), Study of the Problem of Discrimination (n 6), [196 & 197] (emphasis added). For a similar discussion, see EIA Daes (Special Rapporteur), Prevention of Discrimination and Protection of Indigenous Peoples and Minorities: Indigenous Peoples and their Relationship to Land, Final Working Paper, UN Doc E/CN.4/Sub.2/2001/21 (2001), [20]. Indigenous peoples’ connection with their lands and territories has also been widely recognized in international law and judicial practice in recent decades (see Chapter 3 of this book). 11 R Hamilton, ‘Indigenous Legal Traditions, Inter-Societal Law and the Colonization of Marine Spaces’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 17, 19–25; R Dillon, ‘Seeing the Sea: Science, Change and Indigenous Sea Rights’ (2002) 123 Maritime Studies 12, 12–13. 12 N Sharp, ‘Following in the Seamarks? The Saltwater Peoples of Tropical Australia’ (2000) 4(29) Indigenous Law Bulletin 4; and IJ McNiven, ‘Saltwater People: Spiritscapes, Mari­ time Rituals and the Archaeology of Australian Indigenous Seascapes’ (2004) 35(3) World Archaeology 329. 13 H Whitehouse et al., ‘Sea Country: Navigating Indigenous and Colonial Ontologies in Aus­ tralian Environmental Education’ (2014) 20(1) Environmental Education Research 56; J Clements et al., Sea Countries of the South: Indigenous Interests and Connections within the South-West Marine Region of Australia (Report of Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATIS), June 2006). 14 For example, the coastal Sami People of Norway are called Sea Samis (sjøsamene). See Norges Nasjonale Institusjon for Menneskerettigheter, ‘Sjøsamenes Rett til Sjøfiske’, Temarapport, NIM, 2016; Ø Ravna and L Kalak, ‘Legal Protection of Coastal Sami Culture and Livelihood

6

Setting the stage

and other uses of the ocean space have several significances for coastal indig­ enous peoples, including serving as a source of their livelihood and a material basis for their beliefs, customs, traditions, and culture. 2.1 Marine living resources as a means of subsistence MLRs sustain indigenous peoples’ subsistence both in a nutritional and eco­ nomic sense. Many coastal indigenous peoples use MLRs for their consump­ tion or the fulfillment of their traditional diet, and MLRs serve as the main sources of protein and nutrients for many coastal indigenous communities.15 A  recent quantitative study provides a global-scale estimate of the MLRs consumed by coastal indigenous communities.16 The study found that: Indigenous seafood consumption is estimated at approximately 1.9 mil­ lion (1.3 million – 2.5 million) tonnes per year, plus 231 thousand tonnes (167 thousand – 295 thousand tonnes) by indigenous populations of Small Island Developing States. Total estimated seafood requirements by indig­ enous peoples are thus equal to 1–2% of global catch.17 From a comparative perspective, the study found that ‘coastal indigenous peoples eat nearly four times more seafood per capita than the global average [74 kilograms versus 19 kilograms per capita/year], and about 15 times more per capita than non-indigenous peoples in their countries’.18 This estimate of indigenous seafood consumption represents the minimum indigenous fish requirement, for it does not include any commercial fishery catch that is often vital for indigenous economies. This number clearly shows the extreme dependence of coastal indigenous communities on MLRs and their relation­ ships to the oceans on a global scale. Economic subsistence is another important aspect of indigenous peoples’ use of the sea. Coastal indigenous peoples use marine resources to make sea­ based indigenous products, such as products used for cultural and spiritual ceremonies and rituals, hunting equipment, as well as traditional outfits.19 Many indigenous peoples also use (harvest) marine resources for exchange

15

16

17 18 19

in Norway’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 213. DR Klein et al., ‘Management and Conservation of Wildlife in a Changing Arctic Environ­ ment’ in C Symon, L Arris, and B Heal (eds), Arctic Climate Impact Assessment (CUP 2005) 597, 632. AM Cisneros-Montemayor et al., ‘A Global Estimate of Seafood Consumption by Coastal Indigenous Peoples’ (2016) 11(12) PLOS One 1, available at: http://journals.plos.org/plosone/ article?id=10.1371/journal.pone.0166681 (accessed September 2023). Ibid. Ibid. DR Klein et al., Management and Conservation of Wildlife (n 15), 632.

Setting the stage

7

and to generate income. In addition to harvesting MLRs for commercial purposes, coastal indigenous peoples also collect non-living materials, such as pearls and turtle shells, to produce different ornaments for sale to non­ indigenous societies.20 Beyond their use as subsistence and for economic livelihood, marine space and its associated resources are of paramount sig­ nificance in sustaining the cultural and spiritual identity of coastal indig­ enous peoples. 2.2 Food for the soul: cultural and spiritual significance of marine space and resources Coastal indigenous peoples’ connection with marine areas and resources plays an important role in maintaining the material basis of indigenous peoples’ social identity, cultural survival, and spiritual life.21 The hunting and fishing activities of indigenous peoples serve as symbols of their cul­ tural identity and create a sense of social connection since such activities are often accompanied by some sort of cultural practices and rituals. For example, the practices of ‘first salmon ceremony’ – a ceremony to honor and respect the arrival of the first salmon to the river, thereby ensuring that the salmon will return again in the future – and the ‘putting up fish’, form the center of the cultural life of the Tlingit indigenous peoples of southeast Alaska.22 ‘Putting up fish’ refers to the preparation and process of catching, cleaning, curing, smoking, and storing fish in order to provide fish for a family or clan throughout the year.23 The practice of ‘putting up fish’ lasts throughout the fishing season in fish camps, and each activity is conducted in teams consistent with traditional laws.24 Thus, it serves as a venue for clan networks and extended families to come together and actively participate in a living tradition that involves feasting, storytelling, and the exchange of gifts, and it also serves as a means of transmitting lan­ guage and culture across generations.25 The customary practice of sharing and distributing meat and fish, which is common among the Inuit peoples of the Arctic, is also an important example

20 See generally F Berkes, Coasts for People: Interdisciplinary Approaches to Coastal and Marine Resource Management (Routledge 2015). 21 M Nuttall et al., ‘Hunting, Herding, Fishing, and Gathering: Indigenous Peoples and Renew­ able Resource Use in the Arctic’ in C Symon, L Arris, and B Heal (eds), Arctic Climate Impact Assessment (CUP 2005) 649, 654. 22 C Russell and X Twitchell, ‘Tlingit Use of Marine Space: Putting up Fish’ in S Allen, N Bamkes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 341–352. The important component of the ‘first salmon ceremony’ is that the first run of salmon that arrives in the river are not harvested to ensure the survival of the stock. 23 Ibid., 349. 24 Ibid. 25 Ibid., 349–352.

8

Setting the stage

of a ‘social event that demonstrates relatedness, affection, and concern’, and an important means to maintain kinship ties and social relationships.26 The cultural dimension of engagement in hunting and fishing is also manifested in the Greenlandic Inuit ritual of first-catch celebrations.27 When a young boy goes with elders to learn hunting practices and catches his first seal, he will give gifts of meat to every household in his community, and members of the village will be invited to his parents’ home for common social gatherings.28 Thus, a first-catch celebration signifies not only a communal recognition of the boy’s development as a hunter but also a signal of the unifying vitality and cultural importance of the hunting way of life of coastal Inuit indigenous communities. The same is true with respect to the Torres Strait Islanders. In addition to providing a major source of the Islanders’ economic livelihood, fishing and hunting of MLRs represents a vital cultural practice of impor­ tance in gift-giving and ceremonial feasting and plays an important role in the education of young men.29 Recognizing the cultural and social values imbued in sea areas, research­ ers – including anthropologists and human geographers – researching indig­ enous customary marine tenure have referred to the marine space as ‘social and cultural space’.30 Focusing on the relationship of Torres Strait Islanders with the sea, Nietschmann describes the inter-woven social content of the sea space as follows: Sea territories are not just bounded sea space but areas named, known, used, claimed and sometimes defended . . . . A territory, whether terrestrial or marine, is more than simply spatially delimited and defended resources for the exclusive use of a particular group. A territory is social and cul­ tural space as much as it is resource or subsistence space . . .. Places used are places named. People conceptually produce the environment they use, delimit, and defend.31 The 2010 Report of the Permanent Forum on Indigenous Issues (PFII) on indigenous fishing rights in the seas also notes that ‘the use of the oceans through centuries, especially the near coastal waters with adjoining bodies such as bays, estuaries and fjords, has had an instrumental effect in creating

M Nuttall et al., Hunting, Herding, Fishing and Gathering (n 21), 655.

Ibid.

Ibid.

ME Mulrennan and CH Scott, ‘Mare Nullius: Indigenous Rights in Saltwater Environments’

(2000) 31 Development and Change 681, 688. 30 SE Jackson, ‘The Water Is Not Empty: Cross-Cultural Issues in Conceptualizing Sea Space’ (1995) 26(1) Australian Geographer 87, 90. 31 B Nietschmann, ‘Traditional Sea Territories, Resources and Rights in Torres Strait’ in J Cord­ ell (ed.), A Sea of Small Boats (Cultural Survival Inc. 1989) 60 (emphasis added). 26 27 28 29

Setting the stage

9

various coastal indigenous peoples’ cultures’.32 Thus, marine areas and marine resources constitute a basis for, and are essential for maintaining, the cultural fabric of coastal indigenous peoples. Integral to indigenous peoples’ culture is their spirituality. Many coastal indigenous peoples have sacred sites in the marine space where beliefs and stories are associated with those sites. These stories form an integral part of their customary laws and spiritual life.33 In other words, the significance of marine space and resources goes beyond their use as food for the body to include their ‘value as nourishment for the soul’.34 Dussias expresses the inextricable connection of resources, including marine resources, with indig­ enous peoples’ distinct spiritual manifestations by stating that ‘[i]ndigenous resources, and their procurement and use, are bound up with cultural and religious practices and beliefs. They are not just food for body, but also spirit food’.35 In short, the marine space and indigenous peoples’ harvest­ ing activities of marine resources provide indigenous peoples with ‘spiritual and cultural affirmation, and are crucial for passing skills, knowledge and values from one generation to the next, thus ensuring cultural continuity and vibrancy’.36 In sum, coastal indigenous peoples and marine areas and resources are inextricably connected in various ways. Indigenous peoples rely on the oceans and seas, the seabed, and the associated environments for their food, health, economic activities, and cultural practices. Any activity that has a negative impact on the oceans and seas will have disastrous effects on the health, lives, economies, and cultures of indigenous peoples, which, in turn, will exacerbate their already poor living conditions and life expectancy for future generations.37 Yet, the intensity of dependence on marine space and its resources varies from indigenous people to indigenous people, depend­ ing on the specific customary and cultural features of the indigenous people 32 C Smith and M Dodson (Special Rapporteurs), ‘Report on Indigenous Fishing Rights in the Seas with Case Studies from Australia and Norway’, Permanent Forum on Indigenous Issues, UN Doc E/c.19/2010/2 (2010) 3. 33 P Memmott and D Trigger, ‘Marine Tenure in the Wellesley Islands Region, Gulf of Car­ pentaria’ in N Peterson and B Rigsby (eds), Customary Marine Tenure in Australia (Sydney University Press 2014) 181, 119. 34 AM Dussias, ‘Spirit Food and Sovereignty: Pathways for Protecting Indigenous Peoples’ Sub­ sistence Rights’ (2010) 58 Cleveland State Law Review 273, 276. 35 Ibid. 36 Inuit petition to the Inter-American Commission on Human Rights seeking relief for viola­ tions resulting from Global warming caused by Acts and Omissions of the United States (2005) 1. See also generally F Berkes, Sacred Ecology: Traditional Ecological Knowledge and Resource Management (Taylor & Francis 1999). 37 V Toki (Special Rapporteur), ‘Study on the Relationship between Indigenous Peoples and the Pacific Ocean’, Report to Permanent Forum on Indigenous Issues, UN Doc E/C.19/2016/3 (2016), [4]. See also C Smith and M Dodson, Report on Indigenous Fishing Rights in the Seas (n 32).

10

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concerned.38 Despite these strong traditional connections, however, coastal indigenous peoples encounter several challenges in maintaining their rela­ tionship with marine space and its associated resources – as is discussed in the following section. 3. Contemporary challenges to coastal indigenous peoples Coastal indigenous peoples face, inter alia, two main challenges with respect to maintaining their connection with their traditionally used marine areas and resources. The first challenge relates to the lack of recognition of indig­ enous peoples’ customary rights to marine space and associated resources by many coastal States.39 In certain limited circumstances, where States and domestic courts have shown a willingness to recognize indigenous custom­ ary rights to the sea, such rights have been framed narrowly and interpreted restrictively.40 Particularly, States remain unwilling to recognize rights of an exclusive nature and the harvesting of MLRs for commercial purposes.41 This, in turn, has led to the continuing neglect and marginalization of the deeply embedded relationship that indigenous peoples have with the sea and its significance to their cultural identity and spirituality. This tendency of States to reject indigenous claims in relation to marine spaces and resources stems primarily from a fundamental conceptual divide between the dominant Western (Eurocentric) view42 – which draws a clear distinction between ter­ restrial and marine areas – and an indigenous perspective which does not distinguish between such geographical features.43 Indigenous worldviews of land and sea ‘are not terrestrially bound (terra-centric)’.44 Instead, indigenous peoples see their traditional territories holistically as the sum of continental lands, coastal areas, islands, and all traditionally used marine environments.45 38 The Inuit of the four Arctic States, the Norwegian Sea Sami, the Maori of New Zealand, Torres Strait Islanders and other aboriginal peoples of Australia, as well as the indigenous peoples of the Asia-Pacific Archipelagic States – such as the Philippines, Malaysia, Indonesia, Papua New Guinea, and the Solomon Islands – are examples of indigenous peoples strongly linked with marine areas and marine resources. 39 See RC Capistrano and A Charles, ‘Indigenous Rights and Coastal Fisheries: A Framework of Livelihood, Rights and Equity’ (2012) 69 Ocean and Coastal Management 200. 40 S Allen et al., ‘Introduction’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indig­ enous Peoples in Marine Areas (Hart 2019) 1. 41 For a recent survey (study) of a range of national jurisdictions on this topic, see S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019). 42 For a detailed discussion on the inherent Eurocentric nature of international law, see sec­ tion 6 of this chapter. 43 S Allen et al., Introduction (n 40), 2; SE Jackson, The Water Is Not Empty (n 30), 89. 44 SE Jackson, ibid., 94. 45 I Barber, ‘Sea, Land and Fish: Spatial Relationships and the Archeology of South Island Maori Fishing’ (2004) 35(3) World Archaeology 434; P Sullivan, ‘Salt Water, Fresh Water,

Setting the stage

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For marine-oriented indigenous peoples, ‘land and sea space are integrated within systems of customary tenure, local knowledge, and resource use and management’.46 In contrast, States tend to view continental lands and territories as capable of giving rise to private/communal property rights, including ownership and possession, while the seas and the associated resources are considered to be public commons.47 In this regard, Jackson states that ‘while the land has been seen . . . as layered with proprietary rights, use rights and cultural symbols, the [sea] has been seen as empty’ – empty because of the Western cultural construction of the sea as being not sub­ ject to any such rights.48 This binary, statist conception of marine space has considerably undermined indigenous peoples’ customary rights to the sea and the associated resources, as well as their traditional laws that govern marine space. The second challenge, which partly follows from the first, relates to the increasing pressure coming from non-indigenous economic actors and State interventions. These challenges, amongst others, stem from various marine resource development (exploration and exploitation) related activities and environmental measures, which involve the allocation or re-allocation of rights to access, control, or use of ocean space and associated resources away from coastal indigenous communities. These measures take different shapes and forms. First, indigenous traditional fishing grounds and MLRs are increasingly becoming the subject of competing claims from commercial fishing activities through the process of privatization of ocean space and fisheries.49 Privatiza­ tion initiatives, such as individual transferable quotas (ITQs) in their differ­ ent variations,50 involve the private allocation of rights to access, use, and control marine resources with little concern for existing customary marine tenure systems and management practices.51 While developed on the assump­ tion that introducing private property rights systems in fisheries will solve

46 47 48

49 50 51

and Yawuru Social Organization’ in N Peterson and B Rigsby (eds), Customary Marine Tenure in Australia (Sydney University Press 2014) 159–180. ME Mulrennan and CH Scott, Mare Nullius (n 29), 702. S Allen et al., Introduction (n 40). See also ME Mulrennan and CH Scott, ibid., 682. SE Jackson, The Water Is Not Empty (n 30), 93. See also N Sharp, ‘Reimagining Sea Space: From Grotius to Mabo’ in N Peterson and B Rigsby (eds), Customary Marine Tenure in Australia (Sydney University Press 2014) 79; and R Barnes, Property Rights and Natural Resources (Hart 2009) 2. A Lalancette, ‘Creeping in? Neoliberalism, Indigenous Realities and Tropical Rock Lobster (Kair) Management in Torres Strait, Australia’ (2017) 80 Marine Policy 47. See R Barnes, Property Rights and Natural Resources (n 48). NJ Bennett, H Govan, and T Satterfield, ‘Ocean Grabbing’ (2015) 57 Marine Policy 61, 63; E Pinkerton and R Davis, ‘Neoliberalism and the Politics of Enclosure in North American Small-Scale Fisheries’ (2015) 61 Marine Policy 303.

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the problem of overfishing,52 these liberal rights-based approaches have led to the exclusion of coastal indigenous communities and small-scale fishers ‘by concentrating fishing rights in the hands of few “sea lords” or “arm­ chair fishermen” who own and lease the quota’.53 The fish farming indus­ try (commercial aqua(mari)culture) is another factor that controls fisheries resources at the expense of the coastal indigenous peoples who depend on such resources.54 Many States have promoted aqua(mari)culture as a rational response to a growing demand for fish due to the unsustainability of wild capture fisheries.55 The UN Special Rapporteur on the Right to Food has applauded ‘the impressive growth of aquaculture’ as one means to ensure food security in response to ‘the stagnating wild-capture fisheries’.56 How­ ever, aqua(mari)culture in coastal areas conflicts with the traditional fishing rights of indigenous communities, as such fish farms are usually located on or close to the traditional fishing grounds of indigenous communities.57 As such, aqua(mari)culture may lead to the displacement of coastal indigenous communities or to the pollution of their traditional fishing grounds due to the release of hazardous waste.58 With the rapid growth of intensive commercial aquaculture for species with high export value, such as salmon and shrimp, this potential future threat to coastal indigenous communities around the globe will likely continue. Second, opening ocean space to extractive industrial developments, such as in/offshore oil and gas activities, mineral extraction, and marine renew­ able energy development (MRE),59 creates further threats for traditional user coastal indigenous communities around the world and disturbs their ties to

52 FT Christy, ‘Property Rights in The World Ocean’ (1975) 15 Natural Resources Journal 695; and C Stewart, ‘Legislating for Property Rights in Fisheries’, FAO Legislative Study 83 (Rome 2004) 15. 53 Transnational Institute (TNI) Agrarian Justice Programme, Masifundise Development Trust and Afrika Kontakt, The Global Ocean Grab: A Primer (TNI, 2014) 6; C Knott and B Neis, ‘Privatization, Financialization and Ocean Grabbing in New Brunswick Herring Fisheries and Salmon Aquaculture’ (2017) 80 Marine Policy 10. 54 TNI Agrarian Justice Programme, Masifundise Development Trust and Afrika Kontakt, ibid., 32. 55 Ibid., 31; E Eythórsson et al., ‘Governance of Marine Space: Interactions between the Salmon Aquaculture Industry and Indigenous Peoples in Norway and Canada’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 353–374. 56 Interim Report of the Special Rapporteur on the Right to Food, UN Doc A/67/268 (8 August 2012), [34]. 57 See E Eythórsson et al., Governance of Marine Space (n 55); SF Skogvang, ‘Local Commu­ nity Right to Fish: A Sami Perspective’ in C Allard and SF Skogvang (eds), Indigenous Rights in Scandinavia: Autonomous Sami Law (Ashgate Publishing 2015) 127, 130. 58 M Allsopp, P Johnston, and D Santillo, ‘Challenging the Aquaculture Industry on Sustain­ ability’ (2008) Greenpeace Research Laboratories Technical Note 01/2008, 14–15 & 19–20. 59 This refers to the production of energy from offshore wind, tidal current, and waves.

Setting the stage

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the oceans and MLRs.60 Oil, gas, and MRE development activities require exclusive occupation in large areas of the sea close to shore where most of the traditional activities by indigenous communities, such as traditional fishing, take place.61 Industrial oil, gas, and mineral exploration and extraction activ­ ities also dispose of waste in the fishing grounds of indigenous communities, thereby causing harm to the marine resources upon which those communities depend.62 As such, there is a high potential for conflict between these indus­ trial activities and the customary rights of coastal indigenous communities in the sense that they cause a ‘significant challenge to the rights of indigenous communities to fish and navigate their waters and manage their own marine environment’.63 Third, increasing shipping activities – including merchant ships and ships operating in seaborn tourism (cruise ships) – through or close to traditional fishing grounds of indigenous communities has a number of adverse effects.64 Indigenous communities perceive navigation as an unacceptable risk of pol­ lution or a risk to their traditional means of transportation, communication, and harvesting activities.65 For example, icebreaker traffic may accelerate the break-up of the sea ice, thereby causing the destruction of habitats and limiting the safe use of sea ice by indigenous peoples of the Arctic region.66 Increased shipping also threatens indigenous food security through oil and chemical spills, marine mammal strikes and disturbances, and the introduc­ tion of invasive species from ballast water discharges.67 60 See S Kerr et al., ‘Rights and Ownership in Sea Country: Implications of Marine Renewable Energy for Indigenous and Local Communities’ (2015) 52 Marine Policy 108. 61 Ibid., 109; M Tysiachniouk and I Olimpieva, ‘Caught between Traditional Ways of Life and Economic Development: Interactions between Indigenous Peoples and an Oil Company in Numto Nature Park’ (2019) 10 Arctic Review on Law and Politics 56, 57. 62 For a detailed discussion on the effect of extractive activities on indigenous peoples’ rights to the sea and its resources, see SF Skogvang, Local Community Right to Fish (n 57), 130; RL Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Martinus Nijhoff 2014), ch 5. 63 S Karr et al., Rights and Ownership in Sea Country (n 60), 109. 64 See generally DS Dorough, ‘The Rights, Interests, and Role of the Arctic Council Permanent Participants’ in RC Beckman et al. (eds), Governance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States (Brill Nijhoff 2017) 68–103. 65 See H Huntington and S Fox, ‘The Changing Arctic: Indigenous Perspectives’ in C Symon, L Arris and B Heal (eds), Arctic Climate Impact Assessment (CUP 2005) 61–98. 66 See DS Dorough, The Rights, Interests and Role of the Arctic Council Permanent Partici­ pants (n 64), 87–90; SC Wilson et al., ‘Estimating Risk to Ice-Breeding Pinnipeds form Ship­ ping in Arctic and Sub-Arctic Seas’ (2020) 111 Marine Policy, https://doi.org/10.1016/j. marpol.2019.103694; and H Huntington and S Fox, The Changing Arctic (n 65), 66. 67 International Maritime Organization (IMO), Arctic Indigenous Food Security and Shipping, Submitted by FOEI, WWF and Pacific Environment, MEPC 70/17/10 (19 August 2016). For a detailed discussion, see K Bartenstein and A Chircop (eds), Shipping in Inuit Nunangat: Governance Challenges and Approaches in Canadian Arctic Water (Brill 2023); GK Silber et al., ‘The Role of the International Maritime Organization in Reducing Vessel Threat to

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Fourth, the implementation of various forms of area-based management tools and conservation measures, such as the establishment of marine pro­ tected areas (MPAs), also affect indigenous communities by evicting them from their traditionally owned coastal areas, by restricting access to their traditional fishing grounds, or by excluding them from the decision-making process regarding the management of marine resources.68 Even though the establishment of MPAs (with the intention to conserve and restore endan­ gered marine resources and their habitats) is commendable, they may become a form of enclosure that serves as a means of controlling the ocean and its resources under the guise of environmental protection – excluding indigenous peoples and depriving them of their livelihood.69 Farran rightly observes that indigenous peoples are ‘increasingly vulnerable to what might be described as a race for “blue planet credentials” among nation-states eager to dem­ onstrate their positive contribution to saving the planet by protecting its oceans’.70 The focus on marine environmental protection and fisheries con­ servation measures may render the human rights impacts of MPAs on coastal indigenous communities invisible or the subject of little attention. These various forms of ‘ocean grab’71 or ‘coastal grab’72 have become a global phenomenon affecting the rights of coastal indigenous communities.73

68 69

70 71

72 73

Whales: Process, Options, Action and Effectiveness’ (2012) 36 Marine Policy 1221; and JN Larsen, ‘Marine Invasisve Species: Issues and Challenges in Resource Governance and Monitoring of Societal Impacts’ in L Fernandez, BA Kaiser, and N Vestergaard (eds), Marine Invasive Species in the Arctic (Nordic Council of Ministers 2014) 23–31. NJ Bennett, H Govan, and T Satterfield, Ocean Grabbing (n 51), 62. C Corson and KI MacDonald, ‘Enclosing the Global Commons: The Convention on Bio­ logical Diversity and Green Grabbing’ (2012) 39(2) Journal of Peasant Studies 263. See also M Barbesgaard, C Pedersen and T Feodoroff, ‘Marine Protected Areas in South Africa – Ocean Grabbing by Another Name’ (2014) The Ecologist, available at: www.theecologist.org/ News/news_analysis/2645220/marine_protected_areas_in_south_africa_ocean_grabbing_ by_another_name.html (accessed September 2023); and A Orozco-Quintero, ‘Uvinje, Tanza­ nia – An Indigenous Community Erased in the Name of Conservation’ (2014) The Ecologist, available at: www.theecologist.org/News/news_analysis/2579479/uvinje_tanzania_an_indig­ enous_community_erased_in_the_name_of_conservation.html (accessed September 2023). S Farran, ‘Marine Protected Areas and Indigenous Rights’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 319. TNI Agrarian Justice Programme, Masifundise Development Trust, and Afrika Kontakt (n 53); NJ Bennett, H Govan, and T Satterfield, Ocean Grabbing (n 51); N Buxton, C Peder­ son, and M Barbesgaard, ‘Ocean Grabbing: A New Wave of 21st Century Enclosures’ (2014) The Ecologist, available at: www.theecologist.org/News/news_analysis/2598963/ocean_ grabbing_a_new_wave_of_21st_century_enclosures.html (accessed September 2023). M Bavinck et al., ‘The Impact of Coastal Grabbing on Community Conservation: A Global Reconnaissance’ (2017) 16(1) Maritime Studies 1. The terms ‘ocean grab’ or ‘coastal grab’ are general terms used to refer to the dispossession or appropriation of marine areas and resources (by outside interests) from prior user coastal communities whose way of life, livelihoods, and cultural identity depend on the use of the marine space and their involvement in fishing and related activities. However, the two terms are used differently in terms of spatial scope. While ‘coastal grab’ describes activities only

Setting the stage

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The former UN Special Rapporteur on the Right to Food, in his address to the UN General Assembly (UNGA), stressed that ‘ “[o]cean-grabbing” – in the shape of shady access agreements that harm small-scale fisheries . . . and the diversion of resources away from local populations – can be as seri­ ous a threat as “land-grabbing” ’.74 The overall effects on coastal indigenous communities include displacement from traditionally owned coastal areas, loss of control and access to their traditionally used fishing grounds, and, ultimately, loss of their economic self-reliance and cultural identity.75 These threats are real and present concerns and are likely to continue in the future, as States have often supported and promoted the various forms of ocean space and resource appropriation in the name of achieving economic development and meeting conservation objectives. As Bavinck et al. put it, ‘ “[b lue growth” has become a new chapter in the planner’s manual, redirect­ ing attention to the economic potentials of coasts and seas, but away from the social and economic well-being of [indigenous and] local communities’.76 4. The rights of indigenous peoples to marine space and marine resources: a blind spot in international law? Indigenous peoples have historically been considered as mere objects rather than subjects with rights under international law. International law and its various doctrines – including the doctrines of discovery, terra nul­ lius, and open seas – were used as instruments to justify the colonization of indigenous peoples and the dispossession of their lands, marine areas, and natural resources.77 However, with the development of international human rights law, indigenous peoples have gained greater recognition of their rights relating to traditional lands and terrestrial natural resources.78 That said, neither general global and regional human rights instruments nor indigenous-specific instruments stipulate express provisions that recognize the rights of indigenous peoples to traditionally used marine space and asso­ ciated resources.79 This absence of express legal provisions has contributed to the continued neglect and marginalization of the rights of indigenous peoples to utilize marine areas and marine resources and to participate in

74

75 76 77 78 79

in coastal areas (shore and inshore), ‘ocean grab’ is used to describe a wider area of ocean space. See M Bavinck et al., ibid., 2; NJ Bennett, H Govan, and T Satterfield, Ocean Grab­ bing (n 51), 62. O De Schutter, UN Special Rapporteur on the Right to Food, ‘ “Ocean-Grabbing” as Serious a Threat as “Land-Grabbing” ’ (2012) available at: www.srfood.org/en/ocean-grabbing-as­ serious-a-threat-as-land-grabbing-un-food-expert (accessed September 2023). M Bavinck et al., The Impact of Coastal Grabbing (n 72), 13. Ibid. See Chapter 2 of this book. See Chapter 3 of this book. The only exception in this regard is the UNDRIP’s passing reference to the sea under Article 25.

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Setting the stage

the management practices by many coastal States.80 Despite the absence of express provisions, however, new avenues for the protection of the rights of indigenous peoples to marine area and marine resources may be explored through interpretation and elaboration of existing rules and principles of human rights law. The principal instruments of the law of the sea are also silent regarding the use of marine space and resources by indigenous peoples. Neither the four 1958 Geneva Conventions on the Law of the Sea81 nor the 1982 UN Convention on the Law of the Sea (LOSC)82 contain any express reference to indigenous peoples and their rights to marine space and resources. The 1995 UN Fish Stocks Agreement (UNFSA) contains only one passing ref­ erence to indigenous peoples in the context of an article dealing with the recognition of the special requirements of developing States.83 The recently adopted treaty on the conservation and sustainable use of marine biologi­ cal diversity of areas beyond national jurisdiction (BBNJ treaty) recognizes the role of indigenous peoples’ traditional knowledge in the conservation and sustainable use of marine biological diversity, but this relates only to areas beyond national jurisdiction where indigenous peoples have limited interest to harvest MLRs.84 Thus, there is very little in the law of the sea treaties that is directed towards the rights of indigenous peoples. On the other hand, coastal States’ international obligations towards other States arising from these instruments, such as the obligation to respect the right/ freedom of navigation, the obligation to conserve and manage MLRs (includ­ ing marine mammals), as well as the duty to ensure the optimum utilization of living resources of the exclusive economic zone (EEZ), are considered to have a limiting (negative) effect on the recognition of indigenous communi­ ties’ customary right to use marine spaces and marine resources.85 Hence, several potential tensions exist between coastal States’ international 80 SE Jackson, The Water Is Not Empty (n 30), 91. 81 Convention on the Territorial Sea and Contiguous Zone, concluded at Geneva on 29 April  1958, 516 UNTS 205 (entered into force 10 September  1964); Convention on the Continental Shelf, concluded at Geneva on 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964); Convention on the High Seas, concluded at Geneva on 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962); Convention on Fishing and Conservation of the Living Resources of the High Seas, concluded at Geneva on 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966). 82 LOSC (n 3). 83 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, concluded at New York on 4 December 1995, 2167 UNTS 3 (entered into force 11 December 2001), Art 24. 84 Agreement under the United Nations Convention on the Law of the Sea on the conserva­ tion and sustainable use of marine biological diversity of areas beyond national jurisdiction, (adopted 19 June 2023). 85 See N Sharp, Reimagining Sea Space (n 48).

Setting the stage

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obligations under the law of the sea and the rights of their indigenous peoples to the marine areas and marine resources. That said, more specialized international treaties, especially those dealing with marine mammals, have long addressed the topic of indigenous harvesting rights. These include the Bering Fur Seal Treaty,86 the International Convention for the Regulation of Whaling (ICRW),87 and the Agreement on the Conserva­ tion of Polar Bears (ACPB).88 Certain bilateral treaty practices of States relating to maritime boundary delimitation also provide special arrangements for the recognition of the traditional fishing rights (TFRs) of indigenous communities.89 Against this background, this book thoroughly explores whether and to what extent the existing rules and principles of the law of the sea can be interpreted in a manner that accommodates the rights of indigenous peoples relating to marine spaces and marine resources. It further explores the extent to which the aforesaid specialized multilateral and bilateral treaty practices recognize the rights of indigenous peoples to marine resources and the limita­ tions associated with those recognitions. 5. Aim of the book This book explores the rights of indigenous peoples relating to marine space and marine resources under international law by addressing the following three research questions: (i) to what extent does international law recognize and protect the rights of indigenous peoples in relation to natural resources generally in their traditional territories and specifically in relation to marine space and marine resources, and to what extent should it do so?; (ii) whether and to what extent is the interaction between the law of the sea and inter­ national human rights law pertaining to the rights of indigenous peoples to marine space and marine resources mutually supportive or conflictual?; and (iii) whether and to what extent does the law of the sea regime limit the capacity of coastal States to recognize and implement the rights of indigenous peoples relating to marine space and resources? While there is a rich body of literature on the general position of indig­ enous peoples in international law, specifically with respect to their rights to lands and terrestrial natural resources,90 scholarly literature on the rights 86 Convention between the United States and Other Powers Providing for the Preservation and Protection of Fur Seals (the Bering Fur Seal Treaty), concluded at Washington on 7 July 1911, 37 Stat 1542 (entered into force 15 December 1911). 87 International Convention for the Regulation of Whaling, concluded at Washington on 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948). 88 Agreement on the Conservation of Polar Bears, concluded at Oslo on 15 November 1973, 2898 UNTS 243 (entered into force 26 May 1976). 89 See Chapter 8 for a discussion of these bilateral treaty practices. 90 See, for example, J Anaya, Indigenous Peoples in International Law (n 5); P Thornberry, Indigenous Peoples and Human Rights (Manchester University Press 2002); J Gilbert,

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of indigenous peoples in marine areas and marine resources is very limited. An early contribution by Valencia and VanderZwaag explored the possible opportunities and challenges that the changes introduced by the adoption of the LOSC might have on the rights of indigenous peoples.91 However, that article provided only a general assessment of the LOSC rather than compre­ hensively examining the relevant provisions of the Convention. Moreover, since that contribution, several developments have taken place both within the fields of human rights law92 and the law of the sea, which need to be thor­ oughly explored. Studies on the rights of indigenous peoples to marine space and resources have started to increase in recent years, but such studies are largely limited in their scope and focus primarily on the examination of the issues within specific national jurisdictions.93 Literature that comprehensively examines the international human rights law and the law of the sea regimes, including specialized treaty regimes that afford protection to the rights of indigenous peoples to marine resources, remains scarce.94 Thus, this book aims to fill a gap in the literature and add to the limited existing body of knowledge with respect to the rights of indigenous peoples in relation to marine space and marine resources. It provides an in-depth evalu­ ation of the nature and extent of the protection accorded to indigenous peo­ ples under international law, particularly by articulating the nexus between international human rights law and the law of the sea. Equally important, this book explores bilateral treaty practice dealing with maritime boundary delimitation and uncovers the various approaches that States have devised to accommodate indigenous peoples’ TFRs. 6. Situating the book: theoretical and methodological approaches It is important at this stage to indicate the position of this book from a theo­ retical and methodological perspective. This book follows a doctrinal legal research method to understand the current status (content) of international law pertaining to the rights of indigenous peoples to marine space and marine

91

92 93

94

Indigenous Peoples’ Land Rights under International Law (n 9); and M Åhrèn, Indigenous Peoples’ Status in the International Legal System (OUP 2016). MJ Valencia and D VanderZwaag, ‘Maritime Claims and Management Rights of Indigenous Peoples: Rising Tides in the Pacific and Northern Waters’ (1989) 12 Ocean  & Shoreline Management 125. Valencia and VanderZwaag’s article predated all the indigenous-specific human rights instru­ ments with the exception of ILO Convention 107. See S Kerr et al., Rights and Ownership in Sea Country (n 60); SF Skogvang, Local Com­ munity Right to Fish (n 57); V Toki, ‘Indigenous Peoples’ Fisheries Rights – A Comparative Perspective between Maori and the Sami’ (2010) 1 Arctic Review on Law and Politics 54. For a recent but selective contribution, see S Allen, N Bankes, and Ø Ravna, The Rights of Indigenous Peoples in Marine Areas (n 41).

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resources (the lex lata) through analysis and interpretation of ‘the authoritative sources’ of international law stipulated under Article 38 of the ICJ Statute.95 In this respect, the doctrinal legal method involves the double task of locating the relevant and applicable sources of international law as well as interpret­ ing and analyzing them using the accepted rules of interpretation provided under the Vienna Convention on the Law of Treaties (VCLT).96 However, the research questions outlined previously necessarily require going beyond an analysis of the existing international law to include normative aspects of the law, i.e., what the law ‘should be’ or ‘ought to be’ – the lex ferenda. To do so, this book follows two interrelated and complementary critical theoretical and methodological approaches, namely a third-world approach to interna­ tional law (TWAIL) and a human rights-based approach (HRBA) to natural resources. These approaches are discussed in detail in the following sections. 6.1 TWAIL: a critical theoretical lens on international law TWAIL – also known as the theory of decolonization of international law – is a distinctive critical approach for understanding the nature of international law shaped by the experiences and centered on addressing the concerns of Third World States97 and peoples. It is a scholarly movement that shifts the international legal paradigm away from the dominant Eurocentric narratives of international law towards an alternative and critical view of international law that embraces the rights and interests of Third World States and peo­ ples.98 In keeping with other critical studies concerned with marginalized 95 Statute of the International Court of Justice, adopted at San Francisco on 26 June  1945, 33 UNTS 993 (entered into force 24 October  1945). Article 38 provides for two sets of sources – primary and subsidiary sources of international law. The first category of sources includes international conventions, customary international law, and general principles of law ‘recognized by civilized nations’. Whereas, the subsidiary sources are judicial decisions and teachings of the most highly qualified publicists. 96 See Vienna Convention on the Law of Treaties (VCLT), concluded at Vienna on 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Arts. 31–33. 97 The term ‘Third World’ is a Cold War construct, and it was used to describe States that were not aligned with the Communist Bloc or NATO and that had colonial pasts in Asia, Africa, Latin America, and Oceania. Currently, the term ‘Third World States’ refers to the ‘develop­ ing States’, the ‘postcolonial States’, or the ‘Global South’; and this category is mainly seen as ‘reflect[ing] a level of unity imagined and constituted in ways which would enable resist­ ance to a range of practices [and hegemonic policies] which systematically disadvantage and subordinate an otherwise diverse group of people’ (BS Chimni, ‘Third World Approaches to International Law: A Manifesto’ (2006) 8 International Community Law Review 3, 5–6). 98 TWAIL is a decentralized network of critical legal scholars with common ideologies but no structure of authority, see JT Gathii, ‘TWAIL: A Brief History of Its Origins, Its Decentral­ ized Network, and a Tentative Bibliography’ (2011) 3(1) Trade, Law and Development 26; and JT Gathii, ‘Alternative and Critical: The Contribution of Research and Scholarship on Developing Countries to International Legal Theory’ (2000) 41 Harvard International Law Journal 263.

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Setting the stage

groups, such as feminist approaches, critical race theory, and indigenous studies, TWAIL seeks to identify systematic discrimination, exclusion, subor­ dination, and oppression of Third World States and peoples and the complic­ ity of law in these actions. The Eurocentrism of international law is the main catalyst for the emer­ gence of TWAIL. International law has European and Christian origins. While Crawford observes that ‘members of the society whose law was international were the European States’,99 Oppenheim similarly holds that ‘international law is in its origin essentially a product of Christian civiliza­ tions’.100 Bedjaoui, a prominent TWAIL scholar and former judge of the ICJ, captures the main features of classical international law, observing that: ‘classical international law . . . consisted of a set of rules with a geo­ graphical bias (it was a European law), a religious-ethical inspiration (it was a Christian law), an economic motivation (it was a mercantilist law), and political aims (it was an imperialist law)’.101 As such, TWAIL bases itself on the premise that international law is inherently Eurocentric and emerged in the process of colonial encounters to justify the colonization and subjugation of the non-European States and peoples and the exploitation of their resources.102 Harris rightly argues that ‘although [colonial] power was expressed in many forms, law was a principal conduit’.103 Advocates of TWAIL further allege that the use of international law – as an instru­ ment to legitimize the actions of the powerful Western States against the non-Europeans – is not merely something of the past but continues to be an instrument of neo-colonialism facilitating the exploitation of Third World States and peoples in various forms.104 In essence, given that international law has deep colonial roots and is primarily based on Western conceptions

99 J Crawford, ‘The Criteria for Statehood in International Law’ (1976) 48(1) British YIL 93, 98. 100 LFL Oppenheim, International Law: A Treatise, 4th edn (Longmans, Green & Co. 1928). 101 M Bedjaoui, ‘Poverty of the International Order’ in RA Falk, FV Kratochwil and SH Mend­ lovitz (eds), International Law: A Contemporary Perspective (Westview Press 1985) 153. For a detailed discussion on the Eurocentric nature of international law, see JT Gathii, ‘International Law and Eurocentricity’ (1998) 9 European Journal of International Law 184; and M Koskenniemi, ‘Histories of International Law: Dealing with Eurocentrism’ (2011) 19 Rechtsgeschichte 152. 102 A Anghie, Imperialism, Sovereignty, and the Making of International Law (CUP 2004) 32–65. 103 DC Harris, Fish, Law, and Colonialism: The Legal Capture of Salmon in British Columbia (University of Toronto Press 2001) 186. 104 Eslava observes that imperialism ‘is not a historical phenomenon that can be cordoned off somewhere in the past’. Instead, imperialism consists of ‘a multifarious set of asymmetrical arrangements and forms of conditional integration that have travelled across time and space, and through many scales and sites of governance – from the international to the national and the local; from the public to the private; from the ideological to the material; from the human to the non-human, and beyond’. See L Eslava, ‘TWAIL Coordinates’,

Setting the stage

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and worldviews, contemporary international law (be it conventional or cus­ tomary international law) does not fully and properly address the rights of Third World States and peoples.105 As indicated, TWAIL not only focuses on Third World States but also follows a ‘peoples-focused’ approach to international law. It is concerned with the rights of Third World peoples – particularly indigenous peoples106 – as legal subjects of international law.107 This is mainly because recognition of the sovereignty of States does not stop them from acting in ways that are against the interests of their diverse peoples, including minorities and indigenous peoples.108 Indeed, sovereignty may provide ‘unlimited opportu­ nities for operation at home’ and ‘shield tyrannical governments’.109 Thus, as Anghie and Chimni observe, TWAIL ‘evaluates positivist rules through the lens of the lived experiences of indigenous peoples’, and ‘it is the actualized experience of peoples and not merely that of States, which represent them in international fora, that is the interpretative prism through which rules of international law are to be evaluated’.110 6.1.1 The dual aims of TWAIL Against the underlying assumptions discussed previously, TWAIL generally aims to achieve two main objectives. First, it aims to understand, unpack, and deconstruct the uses of international law as a medium for the creation and perpetuation of a racialized hierarchy of international norms and insti­ tutions that subordinate non-Europeans to Europeans.111 It aims to unpack the modus operandi of various doctrines of international law vis-à-vis Third World States and peoples. It critically evaluates how the doctrines of sover­ eignty, discovery and terra nullius, the freedom of the sea, and civilizing mis­ sion emerged and continuously operated to legitimize colonialism and the occupation of non-European lands and territories by European powers.112

105 106 107 108 109 110 111 112

Critical Legal Thinking, available at: https://criticallegalthinking.com/2019/04/02/twail­ coordinates/ (accessed September 2023). See generally DP Fidler, ‘Revolt Against or from within the West? TWAIL, the Developing World, and the Future Direction of International Law’ (2003) 2(1) Chinese JIL 29. S Gordon, ‘Indigenous Rights in Modern International Law from a Critical Third World Perspective’ (2007) 31(2) American Indian Law Review 401. See U Baxi, ‘What May the “Third World” Expect from International Law’ (2006) 27(5) Third World Quarterly 713. A Anghie and BS Chimni, ‘Third World Approaches to International Law and Individual Responsibility in Internal Conflicts’ (2003) 2(1) Chinese JIL 77, 78. M Koskenniemi, ‘What Use for Sovereignty Today?’ (2011) 1 Asian JIL, 61, 63. A Anghie and BS Chimni, Third World Approaches to International Law and Individual Responsibility (n 108), 78. M Mutua, ‘What Is TWAIL?’ (2000) 94 Proceedings of the ASIL Annual Meeting 31. See A Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth Cen­ tury International Law’ (1999) 40(1) Harvard ILJ 1, 3; M Mutua, ‘Why Redraw the Map

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TWAIL also aims to re-examine the claims and assumptions of contempo­ rary international law, such as the claims of neutrality and universality of international law vis-à-vis Third World States and peoples. Some scholars argue that in the post-decolonization era, international law has been truly internationalized, thus assuming an anti-colonial character, and conse­ quently has become universal.113 However, TWAIL scholars challenge this notion of the universality of international law, arguing that the universaliza­ tion of international law is geographical rather than normative114 and that this universality was a result of the imperial expansion in the 19th century that subordinated non-European peoples to European conquest and domi­ nation.115 Proponents of TWAIL maintain that to prescribe uniform global standards that govern all States, international law denies, erases, or ignores the ‘specific cultures, belief systems, and political organizations’ as well as conditions of uneven development among Third World States and peoples.116 Mutua regards this universality or ‘single value’ approach of international law as ‘a forced assimilation of non-European peoples into international law, a regime of global governance that issued from European thought, history, culture, and experience’.117 Second, TWAIL aims not only to deconstruct the Eurocentric inter­ national law but also seeks to (re)construct and present an alternative normative legal order for international governance that properly recog­ nizes and protects the rights and interests of Third World States and peo­ ples. To that end, TWAIL sets a ‘decolonization agenda’: advocating that Third World States and peoples should not merely rely on the traditional doctrines of international law – which runs against their interests – but should instead reconstruct those doctrines in a manner that better pro­ tects their interests.118 As Anghie and Chimni put it, TWAIL ‘seeks to

113 114 115

116

117

118

of Africa: A  Moral and Legal Inquiry’ (1995) 16(4) Michigan Journal of International Law 1113; and RJ Miller, ‘The Doctrine of Discovery in American Indian Law’ (2005) 42 IDAHO Law Review 1. M Shaw, International Law, 5th edn (CUP 2003) 39. Anghie, Finding the Peripheries (n 112), 1; M Mutua, What Is TWAIL (n 111), 31. A Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’ (1996) 5(3) Social and Legal Studies 321; and L Eslava and S Pahuja, ‘Between Resistance and Reform: TWAIL and The Universality of International Law’ (2011) 3(1) Trade, Law and Development 103. A Anghie, Finding the Peripheries (n 112), 1; and VD Shetty, ‘Why TWAIL Must Not Fail: Origins and Applications of Third World Approaches to International Law’ (2012) 3(2) Kings Student Law Review 69, 71. M Mutua, What Is TWAIL (n 111), 34. For a detailed discussion of this point, see K Mick­ elson, ‘How Universal Is the Universal Declaration?’ (1998) 47 University of New Brun­ swick Law Journal 19; and E Engle, ‘Universal Human Rights: A Generational History’ (2006) 12(1) Annual Survey of International & Comparative Law 219. A Anghie, Imperialism, Sovereignty, and the Making of International Law (n 102), 210.

Setting the stage

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transform international law from being a language of oppression to a language of emancipation – a body of rules and practices that reflect and embody the struggles and aspirations of Third World [States and] peo­ ples thereby promotes truly global justice’.119 Therefore, TWAIL requires that the various rules of international law – including the law of the sea and human rights law – be (re)interpreted in a manner that rectifies past injustices, embraces existing indigenous laws and traditional practices (i.e., recognizes a legal pluralism that respects indigenous worldviews), and empowers Third World States and indigenous peoples to enable them to meet their contemporary needs.120 TWAIL also advocates for the active participation of Third World States and peoples in the making of inter­ national law, believing that their ‘co-authorship’ would help create uni­ versal norms of international law.121 In short, TWAIL seeks to decolonize and transform international law to make it responsive to the concerns of Third World States and peoples. To that end, TWAIL approaches expand and open new conceptual spaces for international legal scholarship and practice by investigating and selectively embracing the egalitarian val­ ues of Western international legal norms rather than blindly relying on dominant narratives that reinforce the hierarchical or narrow aims of European States.122 Generally, the discontents of international law – that it is a hegemonic and Eurocentric regime that has proclaimed neutrality and universality and yet, in practice, has helped to underpin practices characterized by violence, exploitation, and inequality123 – triggered the scholarly movement of TWAIL. Thus, TWAIL aims to expose such injustices, imbalances (inequalities), and contradictions inherent in the Eurocentric system of international law and to turn international law toward a truly universal, impartial, and equita­ ble law capable of addressing the concerns of the historically disadvantaged Third World States and peoples.124 Put simply, TWAIL provides analytical tools to deconstruct the colonial legacies of international law and to evalu­ ate the engagement of contemporary international law with the realities of 119 A Anghie and BS Chimni, Third World Approaches to International Law and Individual Responsibility (n 108), 78–79. 120 In this regard, Mutua argues that ‘TWAIL is fundamentally a reconstructive movement that seeks a new compact of international law’ (M Mutua, What Is TWAIL (n 111), 38). 121 A Anghie and BS Chimni, Third World Approaches to International Law and Individual Responsibility (n 108), 81. 122 U Natarajan et al., ‘Introduction: TWAIL – On Praxis and the Intellectual’ (2016) 37(11) Third World Quarterly 1946. 123 B Rajagopal, ‘International Law and Its Discontents: Rethinking the Global South’ (2012) 106 ASIL Proceedings 176. 124 OC Okafor, ‘Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective’ (2005) 43 OSGOODE Hall Law Journal 171, 176.

24

Setting the stage

Third World States and peoples within the context of a continuously chang­ ing international setting.125 6.2 A human rights-based approach to natural resources Within the broader theoretical framework of TWAIL lies a human rights­ based approach (HRBA), which is generally defined as ‘a conceptual frame­ work for the process of human development that is normatively based on international human rights standards and operationally directed to promot­ ing and protecting human rights. It seeks to analyze inequalities .  .  . and redress discriminatory practices’.126 In other words, an HRBA is anchored in a system of rights and corresponding obligations that emanate from interna­ tional human rights law. Such a system helps to identify rights-holders and their entitlements and corresponding obligations of States (as duty-bearers).127 This book specifically adopts an HRBA to marine (natural) resources. This approach posits that the rights of indigenous peoples to own, access, use, and manage (marine) natural resources should, first and foremost, be considered as an issue of human rights rather than as a purely economic matter. This approach has three important benefits. First, it not only helps to address the civil, political, social, economic, and cultural rights of indigenous peoples in an integrated manner but also embraces the prior (existing) legal pluralism of local, traditional, and cultural forms of access rights practiced in indigenous and small-scale fisheries.128 In other words, an HRBA rejects and goes beyond the market-driven private ‘rights-based’ access to marine space and marine resources by placing strong emphasis on customary com­ munal rights of access and rights of tenure. In this respect, Willmann et al. observe that an HRBA ‘is about empowerment, recognition of rights and duties, accountability, transparency, and human dignity. It is not about privatization and fisheries reform efforts on the back of vulnerable fishing communities’.129 Second, an HRBA places inclusion and the participation of indigenous communities at the heart of the management of MLRs. It makes

125 A Anghie and BS Chimni, Third World Approaches to International Law and Individual Responsibility (n 108), 78. 126 UN Practitioners’ Portal on Human Rights Based Approaches to Programming, available at: www.unfpa.org/resources/human-rights-based-approach-programming (accessed Sep­ tember 2023). See also R Willmann et al., ‘A Human Rights-Based Approach in Small-Scale Fisheries: Evolution and Challenges in Implementation’ in S Jentoft et al. (eds), The SmallScale Fisheries Guidelines: Global Implementation (Springer 2017) 763, 765. 127 R Willmann et al., A Human Rights-Based Approach in Small-Scale Fisheries, ibid., 765. 128 TNI Agrarian Justice Programme, Masifundise Development Trust and Afrika Kontakt (n 53), 37–38. 129 R Willmann et al., ‘A Human Rights-Based Approach to Securing Small-Scale Fisheries: A Quest for Development as Freedom’ in S Jentoft et al. (eds), The Small-Scale Fisheries Guidelines: Global Implementation (Springer 2017) 15, 30.

Setting the stage

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the management of MLRs the responsibility of governmental institutions together with the concerned coastal fishing communities.130 Third, since the duty to respect human rights is universal, an HRBA imposes an obligation to respect the human rights of indigenous peoples not only on States but also on non-State actors engaged in the use of ocean space.131 The TWAIL and HRBA perspectives taken together132 guide the methodo­ logical approach of this book in the sense that they inform the selection of sources and methods used to interpret the various relevant and applicable instruments of international law. 6.3 TWAIL-driven methodological approaches As shown, TWAIL is equipped with theoretical (analytical) tools to deter­ mine what international law is and should be from the perspective of Third World States and peoples. However, TWAIL is not only a theory but also offers methods ‘for analyzing international law and institutions’.133 While the doctrinal legal method helps to establish current law (lex lata) by uncover­ ing the gaps and limitations of a legal framework, it neither questions the assumptions underlying a legal system and its broader historical, social, and political context nor does it explore possible future legal trajectories. TWAIL goes beyond the doctrinal method of international law, inter alia, by chal­ lenging and expanding the traditional doctrine of sources and by informing the methods of treaty interpretation. For example, TWAIL challenges the formulas by which rules of customary international law and general princi­ ples of law are established,134 holding that such formulas are designed in a manner to perpetuate and protect the interests of Western States.135 In this regard, according to TWAIL views, the requirement of recognition by the ‘civilized nations’ to establish general principles of international law is out of place and cannot be sustained in contemporary times. Adherence to this 130 TNI Agrarian Justice Programme, Masifundise Development Trust and Afrika Kontakt (n 53), 38. 131 R Willmann et al., A  Human Rights-Based Approach to Securing Small-Scale Fisheries: A Quest (n 129), 20. 132 As discussed previously, TWAIL is a general theory that critically evaluates all types of international law, including the manner in which human rights law recognizes the rights of indigenous peoples. For this reason, the book uses both TWAIL and HRBA together. 133 See OC Okafor, ‘Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?’ (2008) 10 International Community Law Review 371. 134 Regarding the rules of how customary international law and general principles of interna­ tional law are established, see Article 38 of the ICJ Statute. 135 For an excellent critique of the doctrine of sources (focusing on customary international law), see BS Chimni, ‘Customary International Law: A  Third World Perspective’ (2018) 112(1) American Journal of International Law 1; and GRB Galindo and C Yip, ‘Custom­ ary International Law and the Third World: Do Not Step on the Grass’ (2017) 16 Chinese JIL 251.

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Setting the stage

requirement generally creates distinction among States based on their status and contradicts the foundational principle of the sovereign equality of States. Moreover, given that a civilized/uncivilized dichotomy was historically used as grounds to exclude indigenous peoples from the realm of international law, disregarding a State’s legal system on the ground that it is ‘uncivilized’ and incapable of generating a legal principle would only perpetuate that his­ torical legacy.136 Thus, the reference to ‘civilized nations’ under Article 38(1) (c) of the ICJ Statute is currently understood to mean ‘the international com­ munity of States as a whole’.137 TWAIL further widens the scope of legal sources viewing international law more broadly than a set of predefined rules enumerated under the ICJ Stat­ ute to include instruments that States and other relevant international actors consider normative in their relations with each other.138 As Higgins puts it, ‘[i]nternational law is not [only about] rules. It is a normative system .  .  . harnessed to the achievement of common values – values that speak to all of us’.139 This view widens the scope of legal (normative) materials to be used as sources to help international law evolve to deal with contemporary challenges.140 Thus, certain ‘soft law’141 instruments that reflect the views of indigenous peoples should have some legally binding effect.142 In line with this understanding, this author has analyzed several instruments that are denied formal legal validity as ‘soft law’, such as declarations, resolu­ tions, and guidelines and codes of conduct adopted by States, the UNGA, or other international organizations;143 bilateral or multilateral memorandum 136 For example, the principle of permanent sovereignty over natural resources (PSNR) – while rejected by ‘civilized nations – was initially (in the 1950s) advocated and developed by the then non-self-governing territories and newly independent developing States. 137 R Yotova, ‘Challenges in the Identification of the “General Principles of Law Recognized by Civilized Nations”: The Approach of the International Court’ (2017) 3(1) Canadian Journal of Comparative and Contemporary Law 269, 282. 138 R Higgins, Problems and Processes: International Law and How We Use It (Clarendon Press 1994) 18. 139 Ibid., 1–3. See also HG Cohen, ‘Finding International Law: Rethinking the Doctrine of Sources’ (2007) 93 IOWA Law Review 65. 140 In fact, the list of sources of international law under Art 38 of the ICJ Statute is not exhaustive. 141 There is no universally accepted definition of ‘soft law’. The most common understanding of ‘soft law’ refers to any international instrument, other than a treaty, that contains prin­ ciples, norms, standards, or other statements of expected behavior (i.e., non-binding nor­ mative instruments). For a detailed discussion, see D Shelton, ‘Soft Law’ in D Armstrong (ed.), Routledge Handbook of International Law (Routledge Press 2009) 68; A Boyle, ‘The Choice of a Treaty: Hard Law Versus Soft Law’ in S Chesterman, DM Malone and S Vil­ lalpando (eds), The Oxford Handbook of United Nations Treaties (OUP 2019) 101. 142 A Anghie and BS Chimni, Third World Approaches to International Law and Individual Responsibility (n 108), 81. 143 These international organizations include, inter alia, the International Law Commis­ sion (ILC), the International Whaling Commission (IWC), the International Maritime

Setting the stage

27

of understandings (MoU), as well as the works of different expert bodies, including the ‘jurisprudence’ of UN human rights treaty monitoring bod­ ies144 and regional human rights commissions.145 Several documents – includ­ ing provisional conference reports, individual and joint proposals of Third World States in the various negotiations of the law of the sea, and resolutions of Third World coalitions – that reflect the views of Third World States and peoples have also been reviewed. The other methodological significance of TWAIL is that it informs the interpretation of sources. TWAIL advocates that international law instru­ ments be interpreted in a manner that advances the rights of indigenous peoples by embracing their fundamental realities, including, for example, their de facto practices of traditional use patterns of land, marine space, and resources as well as the indigenous law that governs such uses. Thus, rather than treating legal texts as having fixed meaning, TWAIL calls for an evo­ lutionary interpretation that considers the overall context and object of the instrument and in the light of the relevant existing and emerging standards.146 In other words, TWAIL requires that legal texts be read in their broader context using the law-in-context approach. This approach differs from the positivist interpretative approach – which focuses on the formal wording of what is written down – in that the latter approach fails to fully protect indig­ enous peoples’ rights to land, marine areas, and resources since States view these rights through the lens of the Western notion of law.147 Organization (IMO), the International Labour Organization (ILO), and the UN Food and Agriculture Organization (FAO). 144 The UN treaty monitoring bodies are committees of independent experts established to monitor State party compliance with each of the major human rights treaties including, inter alia, the Human Rights Committee (HRC), the Committee on Economic, Social and Cultural Rights (CESCR), and the Committee on the Elimination of All Forms of Racial Discrimination (CERD Committee). These committees undertake three basic functions: (i) they adopt general comments/recommendations providing guidance on the interpreta­ tion of specific provisions of their respective conventions; (ii) they issue ‘concluding obser­ vations’ on State parties’ periodic reports; and (iii) they adopt ‘Views’ on individual cases (communications brought by individuals or groups) if State parties accept the individual complaints procedures. 145 Particularly, the Inter-American Commission on Human Rights (IACHR) and the African Commission on Human and Peoples’ Rights (AfComHPR) have played significant roles in recognizing and protecting the rights of indigenous peoples to their traditional lands and natural resources. The views of these bodies on indigenous communications have been influential in shaping regional and international norms on indigenous rights and guiding international law bodies grappling with indigenous issues. 146 For a detailed discussion, see J Anaya, ‘Divergent Discourses About International Law, Indigenous Peoples, and Rights over Lands and Natural Resources: Toward a Realist Trend’ (2005) 16 Colorado JIELP 237, 257. 147 Ibid., 245. See also J Perrin, ‘Legal Pluralism as a Method of Interpretation: A Methodo­ logical Approach to Decolonizing Indigenous Peoples’ Land Rights under International Law” (2017) XV Universitas 23.

28

Setting the stage

In this regard, one important TWAIL-driven method adopted in this book is the historicization of international law. Historicization, or a ‘turn to his­ tory’ in international law, has become an increasingly used method of ana­ lyzing international law since the 1990s.148 The ‘turn’ has been understood as a way to reread, rethink, and resituate the histories of international law. TWAIL adopts a historical lens when assessing international law as it aims to uncover how international law is constructed, legitimized, and operation­ alized in a colonial and Global North-South context.149 Indeed, history is an essential part of the legitimacy of TWAIL’s perspective on international law.150 Historicization plays, inter alia, two principal roles. First, it helps to bring alternative epistemologies into the history of international law by revealing the ‘untold stories/narratives’ of indigenous peoples. This reveal, in turn, helps to counter the more celebrated histories (dominant narratives) of international law by providing a more holistic and nuanced history of the discipline.151 This historical focus further helps to formulate alternative conceptions (to the dominant Western narrative) of how international law developed and what it means. In so doing, historicization facilitates an understanding of the plural conceptions of law in the postcolonial world. Second, historicization facilitates the evaluation of contemporary international law in the light of its broader historical context. Historicization is a useful approach to eruditely understand current international law, given that history delimits and orients what is possible today through phenomena known as ‘path dependence’.152 Historicization also reveals the contingencies and contestations underpinning the current legal framework and its organizing principles.153 As such, it opens space for exploring possible alternative trajectories. This book uses histori­ cization as its methodological lens to understand and evaluate the colonial origins (historical foundations), inherent features, and assumptions of inter­ national law that enabled the powerful maritime States to dominate over 148 See M Craven, ‘Theorizing the Turn to History in International Law’ in A Orford and F Hoffmann (eds), The Oxford Handbook on the Theory of International Law (OUP 2016) 21; M Koskenniemi, ‘Vitoria and Us: Thoughts on Critical Histories of International Law’ (2014) 22 Rechtsgechichte 119. 149 A Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern Interna­ tional Law’ (2012) IILJ Working Paper; and GRB Galindo, ‘Force Field: On History and Theory of International Law’ (2012) 20 Journal of the Max Planck Institute for European Legal History 86. 150 GRB Galindo, ‘Splitting TWAIL?’ (2016) 33 Windsor Yearbook of Access to Justice 42. 151 For a detailed discussion, see JV Bernstorff (ed.), The Battle for International Law: SouthNorth Perspectives on the Decolonization Era (OUP 2019). 152 J Husa, ‘Developing Legal System, Legal Transplants, and Path Dependence: Reflections of the Rule of Law’ (2018) 6(2) Chinese Journal of Comparative Law 129. 153 It is worth distinguishing between proper histography written by legal historians and legal scholars using histography as a method of inquiry. This author follows the latter approach in this book.

Setting the stage

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non-European peoples for centuries. Particularly, historicization of the law of the sea helps to connect some of the political contestations currently aris­ ing in ocean governance with the past histories of the law of the sea and recurring debates on ocean justice. In conclusion, TWAIL represents an approach that combines critical juris­ prudence and a turn to history in international law. As such, TWAIL not only helps to understand the current law but also provides extra-lens (perspective) to frame what the law should be. 7. Structure of the book This book is organized into three parts. Part I is comprised of this introduc­ tory chapter that sets the stage and Chapter 2, which provides a short his­ torical sketch of the evolution of international law in relation to the rights of indigenous peoples to lands, marine spaces, and both terrestrial and marine resources. Chapter 2 specifically discusses the various doctrines of classical international law that were used as instruments to dispossess indigenous peoples of their lands, marine areas, and natural resources. Part II includes Chapters 3 and 4. While Chapter 3 explores the rights of indigenous peoples to lands, territories, and natural resources in general under contemporary international human rights law, Chapter 4 specifically examines the applica­ tion of this body of law to the rights of indigenous peoples relating to marine space and marine resources. Part III of this book comprises a set of four chapters (Chapters  5 to 8) that explore the rights of indigenous peoples with respect to marine space and its resources under the law of the sea regime and its interaction with international human rights law. Chapter 5 provides a general background to the rights and obligations of coastal States under the law of the sea regime. Chapter 6 examines the nature of, and possible mechanisms for, the interac­ tion between the law of the sea and international human rights law pertain­ ing to the rights of indigenous peoples to marine space and marine resources. Chapter 7 explores the rights of indigenous people to harvest marine mam­ mals. It examines the marine mammal provision of the LOSC, various gen­ eral wildlife conservation-oriented instruments that cover marine mammals, as well as instruments specifically dealing with the conservation and manage­ ment of specific types of marine mammals, such as seals, whales, and polar bears. Chapter 8 discusses the concept of traditional fishing rights (TFRs) in the law of the sea and its relevance (application) to the rights of indigenous peoples to harvest MLRs across international maritime boundaries. Chap­ ter 8 not only examines the provisions of the LOSC dealing with TFRs but also explores the relevant jurisprudence of international courts and tribunals and State bilateral practice on the topic. Finally, Chapter 9 of the book pre­ sents the core conclusions and indicates some possible pathways for the way forward.

Chapter 2

The evolution of international law in relation to the rights of indigenous peoples to lands, marine space, and natural resources A historical sketch

1. Introduction The treatment of indigenous peoples by colonial powers and subsequently by their States has been a salient issue throughout the different phases of the evolution of international law. Indeed, most of the problems that indigenous peoples currently face with respect to their collective rights to lands, marine space, and natural resources are connected to their historical ill-treatment.1 This chapter provides a brief assessment of the evolution of international law as applied to indigenous peoples’ rights to lands, marine spaces, and natural resources from its historical roots in colonialism to contemporary developments. The temporal frame of the analysis is from the end of the 15th century – the first contact of indigenous peoples of the Western hemisphere with Europeans following the ‘discovery’ of the ‘new world’ by Columbus in 1492 – to current times. The discussion is structured into three time periods of international law: the pre-classical international law, the classical period of international law, and international law in the United Nations (UN) era.2 The aim of this chapter is not to provide a comprehensive assessment of the treatment of indigenous peoples throughout the history of international law but rather to offer a contextual background for assessing the rights of indigenous peoples over their lands, marine space, and natural resources in 1 R Hamilton, ‘Indigenous Legal Traditions, Inter-Societal Law and the Colonization of Marine Spaces’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 17, 33; M Åhrèn, Indigenous Peoples’ Status in the International Legal System (OUP 2016) 7. 2 This author has classified international law into these three time periods for two main rea­ sons. First, international law has had different manifestations in each period. While interna­ tional law was imperial law used by imperial States to colonize indigenous territories in the pre-classical period, it crystalized into a discrete body of law, known as the law of nations, applicable only to ‘civilized’ sovereign States in the classical period of international law. In the UN era on the other hand, international law has continually evolved to embrace indigenous peoples, especially following the adoption of various human rights instruments. These distinct aspects require separate examination. Second, such classification provides convenience for a structured discussion of the diverse temporal manifestations of international law.

DOI: 10.4324/9781003242772-3

The evolution of international law and indigenous rights

31

contemporary international law, which are explored in subsequent chapters of the book. Section 2 of this chapter discusses the treatment of indigenous peoples in pre-classical international law. Section 3 discusses developments in the classical period of international law, including the various doctrines used to legitimize the dispossession of traditional lands, marine space, and terrestrial and marine resources of indigenous peoples. Section 4 examines the further evolution of international law pertaining to indigenous peoples during the UN era. Finally, section 5 provides concluding remarks. 2. Indigenous peoples in pre-classical international law: acquisition of indigenous lands and territories through conquest and ‘just war’ The arrival of European powers following the discovery of the ‘new world’ by Columbus in 1492 serves as the starting point for any historical review of the pre-classical international law vis-à-vis indigenous peoples.3 In the mid­ 15th century, Spain and Portugal emerged as the dominant colonial European powers competing for access to and control of the oceans and distant (over­ seas) territories. Concerned that such competition between the two Iberian States could lead to division within the Christian world, in turn affecting the ability of Europe to extend its influence in faraway places, Pope Alexander VI issued a Bull in 1493. The Bull drew a north-south demarcation line at 100 leagues west of the Azores and the Cape Verde Islands and granted to Spain all non-Christian lands, including ‘all islands and main-lands found and to be found, discovered and to be discovered’, lying west of the north-south line and to Portugal east of that line, with a reciprocal mission of spreading Christianity throughout the occupied territories.4 Spain and Portugal formal­ ized the Bull by the Treaty of Tordesillas in 1494 with a westward adjustment of the location of the north-south dividing line, which was now drawn at 370 leagues west of the Cape Verde Islands.5 While the Treaty of Tordesillas omits the missionary reason for the division of territory, it declared, like the Bull,

3 For the present purposes, the pre-classical period of international law extends roughly from the beginning of the actual contact between indigenous peoples and the European coloniz­ ers following the discovery of the ‘new world’ by Christopher Columbus in 1492, until the mid-17th century where the concept of a ‘sovereign State’ emerged (the Treaty of Westphalia of 1648). J Anaya, Indigenous Peoples in International Law, 2nd edn (OUP 2004) 16; C Oguamanam, ‘Indigenous Peoples and International Law: The Making of a Regime’ (2004) 30 Queen’s Law Journal 348, 353. 4 PE Steinberg, ‘Lines of Division, Lines of Connection: Stewardship in the World Ocean’ (1999) 89(2) Geographical Review 254, 255–256 (emphasis added). See also A Huff, ‘Indig­ enous Land Rights and the New Self-Determination’ (2005) 16(2) Colorado Journal of Inter­ national Environmental Law and Policy 295, 297–298. 5 S Cattelan, Mare Clausum in Legal Argumentation: Claiming the Seas in the Early Modern Age, PhD Dissertation (Aarhus University, Department of Law 2020) 107–111.

32

Setting the stage

that ‘all lands, both islands and main lands, found and discovered already, or to be found and discovered hereafter’ on the respective sides of the north­ south line were to become under the exclusive authority of the respective States.6 Thus, the Papal Bull and the Tordesillas Treaty served as legal tools for the colonization and occupation of the lands and territories of the nonEuropean peoples.7 Indeed, immediately after the signing of the Tordesillas Treaty, the Spanish colonizers invaded the indigenous American Indians and occupied their lands and territories through a claim of discovery8 and use of arms.9 Acquisition of the territories of indigenous peoples by colonizers through violent conquest was the rule of early formative periods of international law. In this regard, pre-classical international law was ‘a law of conquest’.10 As Gilbert puts it, pre-classical international law ‘viewed indigenous territories as open to con­ quest, as one of the first mandates of the laws of colonization was to legiti­ mize the superiority of the colonizer’s claims over the indigenous presence’.11 The Spanish colonizers also employed a form of slavery system known as the ‘Encomienda system’, which enabled them not only to dispossess the native Indians of their lands and territories but also to own their labor.12 This system constituted a de facto denial of indigenous rights to own their lands since it only allowed indigenous Indians to use a small parcel of the land or part of the produce while granting full ownership to the colonizers.13 The system turned the indigenous peoples into tenants of their own lands. Subsequent European imperial colonial powers followed similar use of force, as well as Christianity-based grounds, to justify their conquest of indigenous lands and territories in different parts of the world.14 Thus, in pre-classical international

6 Treaty of Tordesillas, 1494 cited in PE Steinberg (n 4), 256. 7 For a detailed discussion, See EL Enyew, ‘Sailing with TWAIL: A  Historical Inquiry into Third World Perspectives on the Law of the Sea’ (2022) 21(3) Chinese JIL 439, paras. 17–21. 8 It is worth noting here that symbolic taking of possession of an area (for example the arrival of government-authorized individual citizens in a particular area) was sufficient to invoke the doctrine of discovery by an imperial State in this early formative stage of international law (see J Simsarian, ‘The Acquisition of Legal Title to Terra Nullius’ (1938) 53(1) Political Science Quarterly 111, 127). 9 See S Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and Inter­ national Legal Analysis’ (1999) 12 Harvard Human Rights Journal 57, 59. 10 J Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (Transnational Publishers 2006) 4 & 14. 11 Ibid., 4. 12 J Anaya, Indigenous Peoples in International Law (n 3), 16 & 35 (footnote). 13 J Gilbert, Indigenous Peoples’ Land Rights under International Law (n 10), 7. 14 Some colonial powers, like the British, have at times justified their colonization by conclud­ ing treaties with indigenous peoples. For a detailed discussion, see A Anghie, Imperialism, Sovereignty, and the Making of International Law (CUP 2004); S Wiessner, Rights and Status of Indigenous Peoples (n 9).

The evolution of international law and indigenous rights

33

law, legal title to all lands and territories of indigenous peoples was estab­ lished through papal grant and conquest. While this practice was generally accepted, a few prominent European theorists of the time questioned the legality of the conquest of the lands and territories of the indigenous peoples and their oppression by the Euro­ pean colonial powers. In particular, Francisco de Vitoria defended and confirmed the essential humanity of the indigenous Indians. Vitoria used natural law and an appeal to basic principles of natural reason (as sources of the then international law) to assess the legitimacy of the occupation of indigenous peoples’ lands and territories by the European colonizers and their subsequent interaction.15 As a natural law theorist who considered God as the supreme source of binding legal and moral authority, Vitoria regarded the authority of monarchs as temporal and considered practices that contradict natural law as unlawful.16 As Anaya observes, the perceived natural law ‘provided the jurisprudential grounds for theorists to conceive of and examine norms from a fundamentally humanist, moral perspective, and to withhold the imprimatur of law from acts of earthly sovereigns found to violate the moral code’.17 Moreover, Vitoria considered the uni­ versal principles of natural law to apply to all humankind regardless of any distinction.18 This principle of equality for all human beings was an impor­ tant feature of natural law. In light of this naturalist legal framework, Vito­ ria found no basis for denying the rights of indigenous peoples to their lands and territories and held that they ‘possessed original autonomous powers and entitlements to their lands, which the Europeans were bound to respect’.19 Accordingly, he affirmed not only that the indigenous Ameri­ can Indians were the true owners of their lands and territories but also rejected papal grant and the doctrine of discovery as a legitimate ground for the conquest of those lands and territories. He denied the universal spiritual authority of the pope and maintained that discovery alone could not confer title on the Spaniards as if it had been they who had discovered the Indians.20

15 C Oguamanam, Indigenous Peoples and International Law (n 3), 353.

16 J Anaya, Indigenous Peoples in International Law (n 3), 16–17.

17 Ibid., 16; and D Inman, ‘From the Global to the Local: The Development of Indigenous

Peoples’ Land Rights Internationally and in Southeast Asia’ (2016) 6(1) Asian Journal of International Law 46, 48. 18 C Oguamanam, Indigenous Peoples and International Law (n 3), 354; EIA Daes (Special Rapporteur), Prevention of Discrimination and Protection of Indigenous Peoples and Minorities: Indigenous Peoples and their Relationship to Land, Final Working Paper, UN Doc E/CN.4/Sub.2/2001/21 (2001), [24]. 19 J Anaya, Indigenous Peoples in International Law (n 3), 16 (emphasis added). 20 Ibid., 17–18. Grotius later affirmed Vitoria’s view rejecting both the doctrine of discovery and papal grant in the context of the Portuguese exclusive claims in East Indies (see H Gro­ tius, The Free Sea, D Armitage (ed.) (Liberty Fund Inc. 2004) chs 2 & 3).

34

Setting the stage

Nonetheless, while dismissing title by discovery and papal grant, Vitoria provided other grounds through which the Spanish colonizers could legiti­ mately establish title over indigenous lands and territories. He constructed a theory of ‘just war’ to validate Spanish claims to Indian lands and territories without their consent.21 He held that the indigenous Indians have not only rights but also obligations to allow Europeans to travel through their lands and seashores, trade among them, preach Christianity, and concluded that refusal of the indigenous Indians to allow the Spanish to carry out any of these activities could lead to conquest by way of ‘just war’.22 According to Vitoria, such resort to force and war was legitimate and ‘just’ for two main reasons. First, to travel through the Indian lands, to use their seashores or harbors (i.e., the right of free passage and navigation), and to engage in trade – since the Indians ‘have a surplus of many things which the Spaniards might exchange for things which they lack’ – are the natural rights of the Spaniards.23 Thus, the denial of such rights by the Indians was a violation of the law of nature and ‘a just cause for war’.24 Second, the war was legitimate because it was waged for the benefit of the indigenous peoples themselves – to civilize them through trade and Christianity and to afford them the pro­ tection of the sovereign of Spain, who undertook the administration of their country as they were ‘unfit to found or administer a lawful state up to the standard required by human and civil claims’.25 Although Vitoria had previ­ ously recognized indigenous Indians’ territorial rights, this latter characteri­ zation of indigenous peoples indirectly endorsed the colonial equation that justified conquest – i.e., ‘Commerce plus Christianity equals Civilization’.26 Consequently, he reaffirmed ‘the three Cs’ as ‘just causes’ that gave colonial powers a title to the lands and territories of indigenous peoples.27 Thus, Vitoria articulated a double standard through his natural law arguments. On the one hand, he considered the indigenous Indians as hav­ ing natural (inherent) rights by virtue of their essential humanity. On the other hand, indigenous Indians could lose those rights through conquest

21 E Fox-Decent and I Dahlman, ‘Sovereignty as Trusteeship and Indigenous Peoples’ (2015) 16(2) Theoretical Inquiries in Law 507, 511. 22 A Fitzmaurice, ‘Sovereign Trusteeship and Empire’ (2015) 16(2) Theoretical Inquiries in Law 447, 453. 23 Ibid., 456. See also more generally A Fitzmaurice, Sovereignty, Property and Empire, 1500– 2000 (CUP 2014). 24 Ibid., 453 & 456. 25 E Fox-Decent and I Dahlman, Sovereignty as Trusteeship (n 21), 514 (emphasis added). 26 J Gilbert, Indigenous Peoples’ Land Rights under International Law (n 10), 10. 27 Ibid., 5  & 10. Subsequent theorists of international law, such as Hugo Grotius, had also endorsed the secular version of Vitoria’s theory of ‘just war’ by excluding the spread of Christianity from being a valid ground. See H Grotius, The Free Sea (n 21), xvii & ch 4; and H Grotius, Rights of War and Peace: in Three Volumes, R Tuck (ed.) (Liberty Fund Inc. 2005).

The evolution of international law and indigenous rights

35

following ‘just war’ waged partly for the ‘benefit’ of the Indians since they could, thereby, achieve European civilization.28 This latter approach not only gave the title of indigenous lands to the colonizers but also laid the foundation for the 19th-century international law tradition of using ‘a civilization-based claim of indigenous incapacity to justify [European] domination under the guise of trusteeship’.29 Anaya notes that ‘[Vitoria’s] prescriptions for European encounters with indigenous peoples of the West­ ern Hemisphere contributed to the development of a system of principles and rules governing encounters among all [other indigenous] peoples of the world’.30 Put simply, Vitoria’s theory of ‘just war’ in the name of civiliza­ tion provided support for the subsequent pattern of European colonization around the globe.31 In sum, the pre-classical period of international law – though essentially the law of imperialism – was somehow ‘sympathetic to indigenous peoples’ existence as self-determining communities in the face of imperial onslaught’.32 Theorists of the pre-classical period of international law used natural law as a source of recognition of the rights of indigenous peoples to lands and ter­ ritories even though their efforts had the effect of providing another legal justification for the continuing conquest of indigenous lands and territories, including marine areas, by colonizers. However, international law lost its natural law emphasis when it moved into a new era of secular State-centered law – the period of classical international law. 3. Indigenous peoples in the period of classical international law The classical period of international law refers to the era of late natural law and early positivist international law, which roughly covers from the mid­ 17th century (following the Treaty of Westphalia in 1648) to the end of the Second World War (WWII). Several developments took place in international law during this period, and colonizers developed and used various doctrines to exclude indigenous peoples from the realm of international law and to facilitate the colonization and dispossession of indigenous peoples from their lands, marine spaces, and natural resources. This section briefly discusses these developments.

28 E Fox-Decent and I Dahlman, Sovereignty as Trusteeship (n 21), 511.

29 Ibid., 511. See also generally M Koskenniemi, The Gentle Civilizer of Nations: The Rise and

Fall of International Law 1870–1960 (CUP 2001). 30 J Anaya, Indigenous Peoples in International Law (n 3), 16. 31 For a detailed discussion, see A Anghie, ‘Francisco De Vitoria and the Colonial Origins of International Law’ (1996) 5(3) Social & Legal Studies 321. 32 J Anaya, Indigenous Peoples in International Law (n 3), 15.

36

Setting the stage

3.1 Emergence of ‘the law of nations’, and indigenous exclusion In the classical period, a new phase of international law began. Modern Euro­ pean States and the associated concept of ‘State sovereignty’ emerged with the signing of the 1648 Treaty of Westphalia.33 Following the emergence of sov­ ereign States, a revolutionary shift in intellectual thinking of natural law took place as theorists extended the application of natural law to States. As Anaya notes, ‘European theorists transformed the concept of natural law from a uni­ versal moral code for humankind into a bifurcated regime comprised of the natural rights of individuals and the natural rights of States’.34 In other words, theorists of the time asserted that States, like individuals, have rights and obliga­ tions flowing from natural law. Of such influential theorists of the time, Emmer­ ich de Vattel asserted that ‘[n]ations are free and independent of each other in the same manner as men are naturally free . . . [and accordingly] each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature’.35 Vattel then developed a discrete body of law that exclusively regulates the rights and duties of States in their international relations, known as ‘the law of nations’.36 He defined the ‘law of nations’ as ‘the science of the rights which exist between nations or States, and of the obligations corresponding to these rights’; and is comprised of the natural law of States, positive law of treaties, and custom among States.37 As such, Vattel created a dichotomy between individuals and States, and only the latter became subjects of the ‘law of nations’, whereas the former were entitled to enjoy rights arising under domestic law. This concept of the ‘law of nations’ had far-reaching consequences for indigenous peoples. Since the ‘law of nations’ became State-centered, the enjoyment of collective rights over a territory required that indigenous peo­ ples qualify as ‘nations’, ‘States’, or ‘nation-states’.38 Given that the concept of ‘nation’ or ‘State’ in the Westphalian sense is based on European models of political and social organization whose dominant defining characteris­ tics were the exclusivity of a territorial domain, hierarchical and centralized authority, and sedentary way of cultivation, it was difficult for non-European indigenous peoples to qualify as a ‘nation’ or a ‘State’.39 This is because most indigenous peoples were organized primarily by tribal or kinship ties, had decentralized political structures, enjoyed shared or overlapping spheres of

33 The Westphalian conception of State sovereignty comprised of three central elements: exclu­ sive jurisdiction, territorial integrity, and non-intervention in the domestic affairs of States (see E Fox-Decent and I Dahlman, Sovereignty as Trusteeship (n 21), 512). 34 J Anaya, Indigenous Peoples in International Law (n 3), 20. 35 Ibid., 21. 36 Ibid., 20. 37 Quoted in J Anaya, ibid., 20. 38 Ibid., 22. 39 Ibid., 22.

The evolution of international law and indigenous rights

37

territorial control, and were non-sedentary hunter-gatherer societies.40 Thus, indigenous peoples were categorically excluded from the realm of the ‘law of nations’ as they did not fulfill Euro-centric tests of nationhood, and their lands and territories were, therefore, open to occupation by the European agriculturalist colonizers. 3.2 Decoupling natural law from the law of nations: further exclusion of indigenous peoples International law underwent further evolution in the late 19th century when a purely positivist view of international law emerged. Under this view, inter­ national law arises solely from State consent (i.e., from treaties and custom (state practice)).41 Moreover, positivist international law further tightened the criteria for qualifying as a ‘nation’ or ‘State’ – as a subject of international law – by introducing an additional subjective requirement of recognition by the ‘civilized’ European and European-driven States of the 19th century.42 This is known as the constitutive theory of recognition of statehood. Under this theory, a State cannot become an international person, and therefore a subject of international law, until recognized by those States already within the ‘family of nations’ even if ‘it possesses the objective attributes of a State’.43 Hence, international law became focused purely on inter-State law, dealing exclusively with issues affecting relations among ‘civilized’ sovereign States. The consequence of this evolution of international law for indigenous peo­ ples was twofold. First, they lost all rights that had ‘once been deemed to inhere in them by natural or divine law’, for the latter had no place in the posi­ tivist international law of the late 19th century.44 Anaya observes that positiv­ ist international law deprived indigenous peoples of their existing rights ‘as

40 Ibid., 22. 41 L Heinämäki, ‘The Rapidly Evolving International Status of Indigenous Peoples: The Exam­ ple of the Sami People in Finland’ in C Allard and SF Skogvang (eds), Indigenous Rights in Scandinavia: Autonomous Sami Law (Ashgate Publishing) 189. 42 J Anaya, Indigenous Peoples in International Law (n 3), 26–27. 43 P Macklem, ‘Indigenous Recognition in International Law: Theoretical Observations’ (2008) 30(1) Michigan Journal of International Law 177, 178. The Montevideo Convention on the Rights and Duties of States provides the objective criteria for Statehood under international law: having a permanent population, a defined territory, a government, and the capacity to enter into relations with other States (see Montevideo Convention on the Rights and Duties of States, concluded at Montevideo on 26 December 1933, 165 LNTS 3802 (entered into force 26 December  1934), Art 1). Legal scholars acknowledge that the Montevideo Convention reflects customary international law (see J Crawford, The Creation of States in International Law, 2nd edn (OUP 2006) 45). Unlike the declaratory theory of recogni­ tion, which holds that a State exists in international law if it fulfills the objective attributes of statehood enumerated in the Montevideo Convention, the constitutive theory adds the additional requirement of recognition by already existing States. 44 J Anaya, Indigenous Peoples in International Law (n 3), 27.

38

Setting the stage

[it] moved away from natural law thinking that was to some extent support­ ive of indigenous peoples’ survival as distinct autonomous communities’.45 The divorce of morality, inherent in humanist natural law, from positive inter­ national law led to the denial of indigenous peoples’ inherent rights, including their rights to land, territories, and natural resources. Second, indigenous peo­ ples could not participate in the making of positivist international law since they could not qualify as a ‘nation’ or ‘State’ or get recognition as such by civi­ lized European States.46 The very conception of positivist international law – a law by the States and for the States of European origin – justified the exclu­ sion of indigenous peoples from the realm of international law.47 Thus, issues relating to the treatment of indigenous peoples were considered to be matters of exclusive internal concern for the colonial State in which such indigenous peoples live, and international law and the international community had no role to play. Consequently, colonial States were free to impose any system of control, through domestic law and policy, over indigenous peoples and their traditional lands, marine areas, and natural resources. In sum, classical international law was strictly State-focused and excluded indigenous peoples from being subjects having rights and duties. On the con­ trary, international law was used as a tool to facilitate colonialism and dis­ possession of indigenous peoples from their lands and territories, discussed in the following section. 3.3 Classical international law doctrines related to the dispossession of the lands, marine spaces, and natural resources of indigenous peoples In the classical period, colonial States created or referred to various doctrines of international law to legitimize their claims over indigenous peoples’ traditional lands, marine spaces, and natural resources. This section critically examines the effects of classical international law doctrines governing title to territory, such as the doctrines of terra nullius and effective occupation, as well as the specific law of the sea doctrine – the doctrine of the open seas – on the rights of indigenous peoples to traditionally used lands, marine spaces, and resources. 3.3.1 The doctrines of terra nullius and effective occupation Classical international law recognized different ways of acquiring sover­ eignty over new territory, including conquest, cession, and occupation.48

45 46 47 48

Ibid., 34.

P Macklem, Indigenous Recognition in International Law (n 43), 2.

J Anaya, Indigenous Peoples in International Law (n 3), 28.

J Castellino and S Allen, Title to Territory in International Law: A Temporal Analysis (Ash­ gate Publishing 2003) 15.

The evolution of international law and indigenous rights

39

Unlike conquest, cession and occupation are peaceful means of acquiring sovereignty over a territory. For the act of occupation to be valid, the terri­ tory should be terra nullius at the time of occupation.49 The term terra nul­ lius is a Latin expression derived from Roman law meaning ‘land belonging to no one’, ‘vacant land’, or ‘unoccupied land’ in the sense of the absence of any human habitation in the area.50 Accordingly, a colonial State that occu­ pied such uninhabited land will legally acquire sovereignty over the territory pursuant to the doctrine of occupation or discovery.51 Thus, in its original application, terra nullius was employed in connection with ‘occupation’ as one of the accepted legal methods for acquiring sovereignty over a territory that was free from human habitation. However, to further facilitate the control of territories by colonial States, the concept of terra nullius evolved and acquired a meaning different from that for which it was originally designed. The term was expanded to refer to all lands and territories that are free from the control of a ‘civilized’ sover­ eign State.52 Put differently, the term terra nullius was redefined to describe all territories that have never been subject to the sovereignty of any State or over which any prior sovereign has expressly or implicitly relinquished sovereignty, irrespective of whether the territory is inhabited by communities whose governance structure did not correspond to that of a ‘civilized’ State.53 As such, the crucial factor was not whether the land was uninhabited but rather that the land was not under the effective control of any of the ‘civilized’ sovereign States. Thus, the doctrine of terra nullius was stretched to justify the acquisition of certain territories inhabited by ‘uncivilized’ communities. It is important to note here that although the doctrine of terra nullius has fre­ quently been used in relation to land territory, it applies equally to the occu­ pation of marine spaces, such as coastal areas and islands.54 The doctrine was also used to conceptualize the sovereignty and jurisdiction of colonial States in relation to the sea and its resources.55 This is mainly because the acquisi­ tion of territorial sovereignty on land indisputably entails ‘the acquisition of sovereign rights over the coastal areas up to the distance recognized at a given time under the law of nations [particularly the law of the sea]’.56 The implication of this extended understanding of the doctrine of terra nullius to indigenous peoples was that their traditionally occupied lands and

49 J Simsarian, The Acquisition of Legal Title to Terra Nullius (n 8), 127.

50 J Gilbert, Indigenous Peoples’ Land Rights under International Law (n 10), 26.

51 U Secher, Aboriginal Customary Law: A  Source of Common Law Title to Land (Hart

2014) 28. 52 J Gilbert, Indigenous Peoples’ Land Rights under International Law (n 10), 21 & 26. 53 A Anghie, Imperialism, Sovereignty and the Making of International Law (n 14), 83. 54 See A Fitzmaurice, ‘The Genealogy of Terra Nullius’ (2007) Australian Historical Studies 1. 55 See R Hamilton, Indigenous Legal Traditions (n 1), 34. 56 Ibid., 37.

40

Setting the stage

marine areas were legally regarded as vacant until the arrival of a sovereign colonial State.57 This was based on the pervasive idea that indigenous peo­ ples were incapable of effectively occupying a territory – the view that lands and territories used by non-sedentary hunters and gatherers were regarded as vacant.58 This view originated from the 17th-century Western theory of property advocated by John Locke, who held that only cultivation of the land through agriculture is regarded as proper and effective occupation of the land that gives rise to property rights.59 As such, the doctrine of terra nullius, when applied to indigenous peoples, integrated the doctrine of effective occupa­ tion. Consequently, the doctrine of terra nullius gave the colonial States free title over indigenous lands, marine areas, and natural resources through mere occupation, regardless of the fact that indigenous peoples may have inhab­ ited the territory from time immemorial.60 At the height of colonization, this expanded version of the doctrine of terra nullius was applied by European colonizers in all parts of the world. While Australia is typically regarded as an example of the application of the extended terra nullius doctrine,61 the doctrine was also similarly applied in the continents of North and South America, Asia, and Africa.62 In short, the doctrine of terra nullius was a legal fiction developed – and modified whenever needed – by colonial powers to facilitate and legitimize their colonization and to dispossess indigenous peo­ ples of their traditional lands, marine spaces, and natural resources. During this period, international courts and arbitral tribunals also endorsed the doctrines of terra nullius and effective occupation as valid grounds for acquiring title over the lands and marine areas of indigenous peoples. One of the earliest cases was the Island of Palmas Case (the Netherlands v United States) brought before the Permanent Court of Arbitration (PCA) in 1928.63 The case concerned a territorial sovereignty dispute between the United States (US) and the Netherlands over the Island of Palmas, also known as the Island of Miangas. The US acquired the Philippines archipelago, including

57 EIA Daes, Indigenous Peoples and their Relationship to Land (n 18), 21–32.

58 J Gilbert, Indigenous Peoples’ Land Rights under International Law (n 10), 24.

59 J Gilbert, Nomadic Peoples and Human Rights (Routledge 2014) 92; M Åhrén, Indigenous

Peoples’ Status (n 1), 17. 60 EIA Daes, ‘Indigenous Peoples’ Rights to Land and Natural Resources’ in N Ghanea and A  Xanthaki (eds), Minorities, Peoples and Self-Determination (Martinus Nijhoff 2005) 75, 79. 61 British colonizers took possession of Australia in 1788 based on the pure application of the fiction that the country was uninhabited (i.e., they neither concluded any treaty nor did they undertake any other act with the existing aboriginal peoples to justify their occupation). See D Mercer, ‘Terra nullius, Aboriginal Sovereignty and Land Rights in Australia: The Debate Continues’ (1993) 12(4) Political Geography 299. 62 J Gilbert, Indigenous Peoples’ Land Rights under International Law (n 10), 27 & 29. 63 Island of Palmas Case (or Miangas) (United States of America v The Netherlands), PCA, Award on the Merits (4 April 1928).

The evolution of international law and indigenous rights

41

the Island of Palmas, from Spain in 1898 under the Treaty of Paris.64 How­ ever, in 1906, the US discovered that the Netherlands also claimed sover­ eignty over the island.65 Both parties agreed to submit the dispute to the PCA. During the litigation, the US claimed that it had sovereignty over the Island of Palmas on the basis of cession by Spain, a State that ‘discovered’ the island and, therefore, had original title over it.66 The Netherlands, on the other hand, argued that it held actual sovereignty over the territory as it had con­ tinuously exercised its authority and effective control over the island and its surrounding waters (through the Dutch East India Company) since 1677.67 The Netherlands argued further that it had exercised its sovereignty over the island by concluding a number of treaties with the native princes of the island and by denying access to the island to other nations.68 The sole arbitrator, Judge Huber, emphasized the principle that actual, continuous, and peaceful display of the functions of a State within a given territory (otherwise known as effective occupation) is an important con­ sideration in establishing territorial sovereignty.69 The arbitrator held that ‘discovery alone, without any subsequent act, cannot at the present time suf­ fice to prove sovereignty over the Island of Palmas’; thus, discovery must be supplemented by the effective occupation of the territory claimed to be discovered.70 The arbitrator then considered, inter alia, the various succes­ sive treaties concluded between the Dutch East India Company (on behalf of the Netherlands) and the native princes of the Island of Palmas as evi­ dence of an actual exercise of authority by the Netherlands, concluding that the Netherlands had sovereignty over the island.71 Hence, the arbitrator held that the Netherlands’ ‘suzerainty over the native State [arising out of treaties concluded with the natives] becomes the basis of territorial sovereignty as towards other members of the community of nations’.72 In so holding, the arbitrator affirmed the validity of treaties concluded with indigenous princes and ‘implicitly recognized a form of original sovereignty that lay with indig­ enous peoples’.73

Ibid., 836.

Ibid.

Ibid., 837.

Ibid.

Ibid., 838 & 856.

Ibid., 840.

The arbitrator concluded that the US failed to produce valid evidence of subsequent practice

of effective occupation (see ibid., 846 & 867). 71 The arbitrator decided that the Netherlands acquired sovereignty over the Island of Palmas by way of continuous and peaceful display of authority and held that this title would, in international law, prevail over a title of acquisition of sovereignty by mere discovery not followed by actual display of State authority (Island of Palmas Case, ibid., 867–869, 871). 72 Ibid., 858. 73 E Fox-Decent and I Dahlman, Sovereignty as Trusteeship (n 21), 511. 64 65 66 67 68 69 70

42

Setting the stage

Nonetheless, the arbitrator did not regard those treaties as agreements governed by international law, concluding that: [C]ontracts between a State or a Company such as the Dutch East India Company and native princes and chiefs of peoples not recognized as mem­ bers of the community of nations .  .  . are not, in the international law sense, treaties or conventions capable of creating rights and obligations such as may, in international law, arise out of treaties.74 While accepting treaties concluded with native peoples as valid instruments for purposes of affirming the sovereignty of the Netherlands, the arbitra­ tor reduced those treaties to mere ‘contracts’ incapable of producing rights and obligations under international law in order not to affirm the sovereign status of indigenous peoples and their treaty-making capacity.75 The arbitra­ tor adopted what Koskenniemi calls the ‘exclusion-inclusion’ approach to classical international law, whereby colonial States recognized indigenous sovereignty by concluding treaties – as a means of obtaining ‘native consent in written form’ – to justify their colonial endeavor through cession but denied such indigenous sovereignty otherwise.76 Moreover, the arbitrator ignored the factual occupation of the island by the indigenous communi­ ties, holding that they were not capable of exercising effective occupation over the territory so as to acquire sovereign title over it. By concluding that the actual habitation of indigenous peoples on the island and the surround­ ing coastal areas did not bar the Netherlands from acquiring title over the territory, through its effective occupation, the arbitrator effectively upheld the doctrine of terra nullius – i.e., the territory was legally ‘empty’ despite the presence of indigenous communities on the island. As such, the Island of Palmas Case clearly demonstrates the interplay between the doctrine of terra nullius and the doctrine of effective occupation in their operation to justify the taking of indigenous peoples’ lands, marine areas, and associated natural resources. In 1933, the Permanent Court of International Justice (PCIJ) also upheld the terra nullius doctrine in the Eastern Greenland Case (Denmark v Norway).77 This case concerned a territorial sovereignty dispute between Denmark and Norway over part of Eastern Greenland and its surrounding waters. When Norway was separated from Denmark and transferred to Swe­ den in 1814 (having been part of Denmark from 1380–1814), the issue of sovereignty over Greenland was not addressed in the settlement (the Treaty of 74 75 76 77

Island of Palmas Case, 858 (emphasis added).

S Wiessner, Rights and Status of Indigenous Peoples (n 9), 96.

M Koskenniemi, The Gentle Civilizer of Nations (n 29), 127& 137–138.

Legal Status of Eastern Greenland (Denmark v Norway) (Judgement) [1933] PCIJ, General

List No 43.

The evolution of international law and indigenous rights

43

Kiel of 1814).78 In 1921, Denmark proclaimed its sovereignty over the whole of Greenland.79 Norway protested Denmark’s action, and in 1931, Norway subsequently ‘published a proclamation declaring that it had proceeded to occupy certain territories in Eastern Greenland’.80 This led Denmark to bring the case to the PCIJ. In the litigation, Denmark claimed that it had continuously and peacefully exercised State authority over the whole of Greenland for a long period of time without contest by any power and had thereby obtained a valid title of sovereignty.81 On the other hand, Norway based its sovereignty claim over the eastern coast of Greenland on the principle of terra nullius. Norway argued that ‘all the parts of Greenland which had not been occupied in such a manner as to bring them effectively under the administration of the Danish government were in the condition of terra nullius, and that if they ceased to be terra nullius they must pass under the Norwegian sovereignty’ upon its occupation of the area.82 Succinctly stated, Norway regarded the east coast of Greenland as terra nullius at the time of Norwegian occupation despite the presence of the Inuit indigenous peoples in the area from time immemorial.83 While holding that the area in dispute had been terra nullius until it was first discovered by the King of Denmark and Norway (when the two States were ruled together under the same crown), the PCIJ decided in favor of Denmark. The PCIJ concluded that from 1814 to 1921, Denmark sufficiently showed the two elements necessary to establish a valid title of sovereignty (as distinct from a right derived by way of conquest and cession) – namely, the intention and will to act as a sovereign and the actual exercise or display of such authority.84 According to the PCIJ, Denmark manifested these elements by issuing different legislation applicable to Greenland, by concluding vari­ ous treaties and granting concessions, by securing recognition of its sover­ eignty over Greenland from other States, and by protecting Inuit indigenous peoples who inhabited the area.85 The Court here employed a double standard. On the one hand, it declared the territory terra nullius even though the Inuit peoples occupied

Ibid., 30 & 64.

Ibid., 33–34.

Ibid., 23 & 42.

Ibid., 44–45.

Ibid., 39.

See PT Ørebech, ‘Terra Nullius, Inuit Habitation and Norse Occupation – With Special

Emphasis on the 1933 East Greenland Case’ (2016) 7(1) Arctic Review on Law and Politics 20, 22. 84 Eastern Greenland Case (n 77), 45–46. 85 Ibid., 48, 54–55, 62–63  & 63–64. In its conclusions, the Court clearly affirmed both the doctrine of terra nullius (when East Greenland was first discovered by the king of Denmark and Norway) and the doctrine of effective occupation by Denmark after its separation from Norway. 78 79 80 81 82 83

44

Setting the stage

the territory for centuries. As such, the PCIJ affirmed the pervasive view that the presence of indigenous peoples cannot prevent the territory from being regarded as terra nullius and cannot impede colonial States from occupying it, since indigenous peoples were considered incapable of effec­ tively occupying territory. On the other hand, the Court regarded Den­ mark’s affiliation with the indigenous Inuit people inhabiting the territory as a valid manifestation and evidence of the intention and actual exercise of sovereignty by Denmark over Greenland. As such, the PCIJ confirmed the colonizing feature of international law that was used to justify the occupa­ tion of indigenous peoples’ lands and territories – disregarding the prior existence of indigenous peoples on such lands. As Anaya rightly states, ‘[t]his case, like the Island of Palmas case, illustrates the operation of the positivist international law, which affirmed sovereignty built upon coloni­ alism to the exclusion of the sovereignty of indigenous peoples [over their lands and territories]’.86 In summary, the doctrines of terra nullius and effective occupation were entrenched in classical international law, affirmed by international courts and tribunals of the time as valid principles, enabling colonizers to freely occupy the lands and territories of indigenous peoples, including marine areas. Discussed in the next section, another specific law of the sea doctrine also facilitated the grabbing of marine areas and resources traditionally used by indigenous peoples. 3.3.2 The doctrine of freedom of the sea: mare nullius As part and parcel of the law of nations, the early history of the law of the sea was dominated by the practices of powerful maritime States that com­ peted to control the world’s oceans for resources and commercial purposes.87 Following the publication of the Papal Bulls of 1493 and the 1494 Treaty of Tordesillas that divided the world’s oceans between Portugal and Spain, the two kingdoms controlled navigation over large parts of the ocean and exercised their sea power to restrict trade in territories lying within and/or near their sphere of influence and monopolized trade in large parts of the East and West Indies respectively (by excluding other powers, particularly the Dutch).88 The monopolistic practices of the two maritime powers provoked different views from publicists concerning issues of access to and control of the oceans, known as ‘the battle of the books’, which led to the emergence of

86 J Anaya, Indigenous Peoples in International Law (n 3), 31.

87 D Anderson, ‘The Development of the Modern Law of the Sea’ in V Lowe (ed.), Modern

Law of the Sea: Selected Essays (Martinus Nijhoff 2008) 1, 5. 88 T Treves, ‘Historical Development of the Law of the Sea’ in DR Rothwell et al. (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 1, 3.

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two competing doctrines: namely the doctrine of open seas and the doctrine of closed seas.89 Defending the rights of the Dutch traders in the East Indies (Dutch East Indian Company) against the Portuguese claims of exclusive jurisdictions of the ocean around and leading to the East Indies, Hugo Grotius advocated for the freedom of the seas (Mare Liberum), arguing that the seas are open to all States to use for navigation90 and fisheries and that no State can appropriate any part of the ocean.91 On the other hand, the English scholar John Selden introduced a doctrine that advocated for the consolidation of maritime juris­ diction under coastal States – the doctrine of closed seas (Mare Clausum). Selden argued that a ‘State is entitled to claim and exercise authority over a defined area of the sea including powers over any foreign ships, notably fish­ ing vessels, that might seek to enter that area’.92 Effectively, Selden argued that certain parts of the ocean are susceptible to appropriation by a State. The Grotian view of the freedom of the seas prevailed with the caveat that adjacent coastal States could exercise sovereign authority close to the shore (based on the cannon-shot rule).93 Grotius’ justification for the freedom of fishing is particularly significant for the current purposes. He argued that marine space and its resources were not susceptible to private property but that such resources were subject to the common use of all States since the seas were boundless and their resources unlimited that ‘it is sufficient for all the uses that Nations can draw from the[re] . . .’.94 He considered scarcity of resources and having determinable bounds (the possibility for physical demarcation or appropriation) as

89 DJ Bederman, ‘The Sea’ in B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law (OUP 2012) 359, 366. The early literature uses the phrases ‘the doctrine of open seas’ and ‘the doctrine of freedom of the seas’ interchangeably as does this book. 90 Grotius justified the freedom of navigation based on natural law arguing that it is a natural right of ‘any nation to go to any other and to trade with it’ (See H Grotius, The Free Sea (n 20), 10). 91 Ibid., 25–26, 30 & generally ch 5. Grotius excepted this rule with respect to ‘a bay or narrow strait or concerning all [parts of the ocean] that may be seen from the shore’ (32–33). See also I Shearer, ‘Grotius and the Law of the Sea’ (1983) Bulletin of the Australian Society of Legal Philosophy 46, 50–55. 92 D Anderson, The Development of the Modern Law of the Sea (n 87), 4–5. It is important to mention that Selden advocated his doctrine of ‘closed seas’ with the particular aim of providing legal justification for Britain’s action to exclude Dutch fishing vessels from British territorial waters. 93 DJ Bederman, The Sea (n 89), 369 & 374. 94 H Grotius, The Free Sea (n 20), xvi & 32; H Grotius, Rights of War and Peace: in Three Volumes (n 27), 428. It is worth noting here that when theorists of this period spoke of ‘property rights to the sea’, they referred to the exclusive jurisdiction of individual States over certain parts of the sea and its resources, rather than referring to individuals or com­ munities as rights holders.

46

Setting the stage

essential prerequisites for the creation of private property – holding that such requirements did not exist at sea.95 Vattel followed and expanded Grotius’ view, arguing that: It is manifest that the use of the open sea, which consists in navigation and fishing, is innocent and inexhaustible; that is to say – he who navigates or fishes in the open sea does no injury to anyone, and the sea, in these two respects, is sufficient for all mankind. Now nature does not give to man a right of appropriating to himself things that may be innocently used, and that are inexhaustible and sufficient for all.96 Thus, the notion that the sea and its marine resources were boundless and inexhaustible made conventional justifications for the creation of private property rights – i.e., scarcity and boundedness of resources – inapplicable to the marine space and its resources.97 This left (almost entire) oceans beyond the narrow limits of national jurisdiction as ‘unownable commons’ allowing all nations to freely access and harvest marine resources.98 This doctrine of the freedom of the sea was accepted as customary international law by the mid-18th century and became the hallmark of the traditional law of the sea governing the oceans until the end of the 20th century.99 The application of the freedom of the seas doctrine (as understood at the time in terms of its spatial extent) had a significantly negative impact on indigenous peoples. The doctrine was conceptualized and continuously used to serve the interests of the European maritime States of the time.100 The doctrine facilitated the European colonial endeavor by giving colonial pow­ ers the unrestricted right to navigate anywhere, allowing them to capture an enlarged world. Anand observes that: In the age of the Industrial revolution and European expansionism, freedom of the seas became a necessity. Freedom of navigation without 95 H Grotius, The Free Sea (n 20), 28 & 32. Grotius detailed these arguments in the Right of War and Peace, at 428–432 & ch 11 more generally). 96 Emer de Vattel, The Law of Nations, or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury, B Kapossy and R Whatmore (eds) (Liberty Fund Inc. 2008) 250 & ch XXIII generally. 97 R Hamilton, Indigenous Legal Traditions (n 1), 35.

98 N Sharp, Saltwater People: The Waves of Memory (University of Toronto Press 2002) 46.

99 DJ Bederman, The Sea (n 89), 369 & 374.

100 It is worth noting here that Grotius articulated the doctrine of free seas as a lawyer of the Dutch East Indian Company to enable the Dutch to secure rights to trade in the East Indies by countering the Portuguese claim of exclusive control over the sea. Thus, even though Grotius articulated the doctrine as a vision of the sea open to every State under natural law, the doctrine emerged primarily to protect the national interests of Holland, particularly to secure the rights of the Dutch East Indian Company to trade and to ‘navigate forbidden waters’. See P Corbett, The Study of International Law (Doubleday 1955) 23.

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hindrance was essential as much for the colonization of Asia and Africa as for the growing inter-state commerce. Instead of fighting fruitless wars among themselves, the European Powers could go out and win new colo­ nies, provided that the seas were safe for navigation. This was the need of the time.101 The freedom of the sea doctrine was articulated to construct the ocean as a ‘friction-free space’ wherein nascent colonial empires and enterprising mer­ chants could reach far-flung land territories and markets without obstruc­ tion.102 Thus, beyond its use for the legitimate purposes of navigation, the doctrine of freedom of the sea enabled the powerful maritime States to move across the wide-open seas to subjugate and colonize non-European peoples.103 The doctrine also gave European maritime powers free access to marine space and the ability to exploit marine resources traditionally used by native inhabitants, ignoring the latter’s customary rights to the sea and its resources and the associated traditional laws governing the sea and customary marine use systems.104 Johannes, focusing on the indigenous customary marine ten­ ure system in the Pacific, notes that: The value of marine tenure was not generally appreciated by western colo­ nizers. It not only ran counter to the western tradition of “freedom of the seas”, which they assumed to have universal validity, but it also interfered with their desire to exploit the islands’ marine resources – a right they tended to take for granted as soon as they planted their flags. Colonial governments often passed laws that weakened or abolished [indigenous] marine tenure.105 Thus, irrespective of any existing indigenous customary rights, the freedom of the seas doctrine designated marine spaces traditionally used by indigenous peoples as open spaces – mare nullius.106 Moreover, the unfettered freedom of fishing in conjunction with modern technologies led to the destruction and overexploitation of marine resources traditionally used by indigenous peoples and, ultimately, to the dispossession of traditional fishing grounds.107

101 RP Anand, ‘ “Tyranny” of the Freedom of the Seas Doctrine’ (1973) 12(3) International Studies 416, 418–419 (emphasis added). 102 PE Steinberg, Lines of Division (n 4), 254. 103 RP Anand, Tyranny of the Freedom of the Seas Doctrine (n 101), 422. 104 N Sharp, ‘Reimagining Sea Space: From Grotius to Mabo’ in N Peterson and B Rigsby (eds), Customary Marine Tenure in Australia (Sydney University Press 2014) 90. 105 RE Johannes, ‘Traditional Marine Conservation Methods in Oceania and Their Demise’ (1978) 9 Annual Review of Ecological Systems 349, 358. 106 See ME Mulrennan and CH Scott, ‘Mare Nullius: Indigenous Rights in Saltwater Environ­ ments’ (2000) 31 Development and Change 681. 107 See R Hamilton, Indigenous Legal Traditions (n 1), 38–39; and R Dillon, ‘Seeing the Sea: Science, Change and Indigenous Sea Rights’ (2002) 123 Maritime Studies 1. Dillon explained this destructive historical incident through the example of whaling and sealing

48

Setting the stage

Since the seas were open to all States, any resistance by indigenous peoples to prevent a colonial State from entering into the waters and exploiting the resources also justified – pursuant to Vitoria’s just war theory – the use of force by such a colonial State.108 As such, the freedom of the seas was func­ tionally equivalent to the doctrine of terra nullius that enabled European States to freely occupy lands inhabited by non-European indigenous peo­ ples. Moreover, although the freedom of the seas doctrine recognized that coastal areas (to a distance of a cannon-shot or 3 nm) and the associated resources could be under the control of the adjacent sovereign State, indig­ enous peoples were excluded from such entitlement as they did not qualify as a sovereign State under the law of nations.109 Hamilton observes that ter­ ritorial sovereignty on land being a condition precedent to sovereign rights in coastal areas, denying indigenous peoples of such territorial sovereignty had the effect of excising indigenous jurisdiction from marine spaces as well.110 Thus, operating together with the general doctrines of sovereignty and terra nullius, the freedom of the seas doctrine facilitated the occupation of coastal areas and islands inhabited by the indigenous peoples and the exploitation of marine resources traditionally used by them. 3.4 Intermediate conclusion Overall, indigenous peoples did not have any legal standing in classical international law. Instead, classical international law was used as a tool to facilitate colonialism. Colonial States relied on different doctrines of interna­ tional law to legitimize their occupation of indigenous peoples’ lands, marine space, and natural resources. International courts and tribunals of the time also provided judicial backing for such colonizing endeavors by upholding those doctrines as valid principles of international law, enabling European colonizers to disregard indigenous peoples’ sovereign right over those lands, marine space, and natural resources. This clearly shows the complicity of classical international law against indigenous peoples: ‘while the boundaries of civilized nations enjoyed international law protection through the doc­ trine of “territorial integrity”, the homelands of natives . . . faced the grim destiny of inhabiting terra nullius [and mare nullius]’.111 Without changing the position that lands and marine areas occupied by indigenous peoples are legally ‘empty’ and open to free occupation and exploitation, international law moved into a new era – the era of the UN.

108 109 110 111

operations that led to the extinction of several species traditionally used by indigenous peoples (13–14). R Hamilton, Indigenous Legal Traditions (n 1), 36. See section 3 of this chapter for a detailed discussion. R Hamilton, Indigenous Legal Traditions (n 1), 37. PT Ørebech, Terra Nullius, Inuit Habitation and Norse Occupation (n 83), 35.

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4. Indigenous peoples in the UN era This section sketches the evolution of international law pertaining to indig­ enous peoples from the establishment of the UN through to the present day. It canvasses developments in the early decades of the UN era – including the UN’s decolonization process, the adoption of the ILO Convention 107, and the codification of the general global and regional human rights instruments – and highlights the limitations of these developments with respect to the rights of indigenous peoples. The section also discusses the evolution of interna­ tional law that took place in the later decades of the UN era, including the adoption of various indigenous-specific human rights law instruments – such as the Convention Concerning Indigenous and Tribal Peoples in Independ­ ent Countries (ILO Convention 169),112 the UN Declaration on the Rights of Indigenous Peoples (UNDRIP),113 and the American Declaration on the Rights of Indigenous Peoples (ADRIP).114 4.1 The UN and its decolonization process The end of WWII and the subsequent establishment of the UN115 in 1945, marked a turning point for States’ commitment to protect and promote human rights.116 Established against the background of the massive atrocities of WWII, the UN, in its Charter, includes ‘respect for the principle of equal rights and self-determination of peoples’,117 as well as the promotion and protection of ‘human rights and fundamental freedoms’ as part of its basic purpose and objective.118 As Wiessner observes: [T]he horrors of the Nazi Holocaust prompted a rethinking of the virtu­ ally unlimited discretion States had regarding the treatment of their own

112 Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169), concluded at Geneva on 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991). 113 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), UN General Assembly Resolution 61/295 (adopted 13 September 2007). 114 American Declaration on the Rights of Indigenous Peoples (ADRIP), AG/Res 2888 (XLVI­ O/16), adopted at Washington on 15 June 2016. For a discussion of the parallel develop­ ments of the law of the sea in the UN era, see Chapter 5 of this book. 115 The UN system comprises all six principal organs of the UN established by the Charter and their subsidiary organs, as well as the UN specialized agencies. 116 Although there were some movements for certain human rights causes after World War I – such as minority rights, racial equality, and working conditions – the Covenant of the League of Nations did not include the promotion and protection of human rights among its objectives. This clearly contrasts with the UN. 117 Charter of the United Nations, signed at San Francisco on 26 June 1945, 892 UNTS 119 (entered into force 24 October 1945), Arts 1(2) & 55. 118 Ibid., preamble and Arts 1(3) & 55(c).

50

Setting the stage

citizens. The United Nations Charter put human rights and self-determi­ nation of peoples first, making them a raison d’être of the new worldwide organizations of governments.119 Accordingly, the UN undertook two principal and parallel tasks: the promo­ tion of the right to self-determination of peoples and the adoption of the principal human rights instruments. To ensure the realization of the right to self-determination, the UN under­ took the decolonization of peoples under colonial domination as one of its primary tasks. Chapter XI of the UN Charter, in general, and Article 73, in particular, provides for the responsibilities of administering powers and the procedures by which decolonization of the non-self-governing territories can be effected. The UN General Assembly (UNGA) also adopted several resolu­ tions relating to the right to self-determination, which served as a catalyst for the independence of colonial peoples (countries) in South America, Africa, Asia, and the Pacific.120 Of the many UNGA resolutions, the 1960 Declara­ tion on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514(XV)) provides detailed clarification of the content and scope of the right to self-determination.121 The Resolution provides that ‘the subjection of peoples to alien subjugation, domination and exploitation con­ stitutes a denial of fundamental human rights, [and] is contrary to the Char­ ter of the United Nations’.122 The Resolution further proclaims ‘the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations’.123 Acknowledging that a large number of States gained inde­ pendence following the adoption of Resolution 1514(XV), the International Court of Justice (ICJ) concluded that this resolution ‘represents a defining moment in the consolidation of State practice on decolonization’.124 The UNGA also adopted a series of resolutions specifically related to the right to economic self-determination, also known as the right to permanent sovereignty over natural resources (PSNR), to enable peoples under colonial

119 S Wiessner, Rights and Status of Indigenous Peoples (n 9), 98 (emphasis added). 120 These resolutions include, inter alia, UNGA Res 637(VII), The Right of Peoples and Nations to Self-Determination, UN Doc A/2361 (1952); UNGA Res 738 (VIII), The Right of Peo­ ples and Nations to Self-Determination (28 November 1953); and UNGA Res 1188(XII), Recommendations Concerning International Respect for the Right of Peoples and Nations to Self-Determination (11 December 1957). 121 UNGA Res 1514(XV), Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc A/4684 (1960). 122 Ibid., [1]. 123 Ibid., preamble, recital 12. 124 Legal consequences for States of the Continued Presence of South Africa in Namibia (South­ west Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16. See also Legal Consequences of the Separation of the Chagos Archi­ pelago from Mauritius in 1965 (Advisory Opinion) [2019] General List No 169, [150].

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domination to have control over their natural resources – further facilitat­ ing the decolonization process.125 However, it was Resolution 1803(XVII) of 1962 that laid the foundation for and gave prominence to this right under international law. Resolution 1803 recognizes the inalienable right of all peo­ ples and nations ‘to freely dispose of their natural wealth and resources in accordance with their national interests, and in respect for [their] economic independence’.126 The 1972 UNGA Resolution 3016(XXVII)127 and the 1973 UNGA Resolution 3171(XXVIII)128 specifically provide for the right to per­ manent sovereignty over marine living and non-living resources. Thus, the right to PSNR provided colonized peoples with the necessary legal basis to protect their natural resources from irresponsible exploitation by colonial powers.129 In short, the decolonization model of self-determination empha­ sized the independence of peoples living under colonial domination, and the UNGA played an important role in facilitating this process. Nonetheless, the decolonization process had certain limitations in its application to indigenous peoples. First, the UNGA resolutions limited the decolonization process to overseas territories under the so-called ‘saltwater’ or ‘blue water’ theory.130 As a result, the decolonization process excluded indigenous peoples enclaved within the territories of colonial States.131 Sec­ ond, the ‘peoples’ entitled to exercise the right to self-determination in gen­ eral, and the right to PSNR in particular, were defined as ‘entire populations of colonial territories’ regardless of the existence of distinct pre-colonial ethnic and cultural identities.132 This excluded specific indigenous peoples 125 These resolutions include, inter alia, UNGA Res 626(VII), Right to Exploit Freely Natural Wealth and Resources (1952); UNGA Res 1314(XIII), Recommendations Concerning Inter­ national Respect for the Rights of Peoples and Nations to Self-Determination (1958); UNGA Res 3016(XXVII), Permanent Sovereignty over Natural Resources of Developing Countries (1972); and UNGA Res 3281(XXIX), Charter of Economic Rights and Duties of States (1974). 126 UNGA Res 1803(XVII), Permanent Sovereignty over Natural Resources (1962), preamble recital 4 & operative [1] (emphasis added). 127 UNGA Res 3016(XXVII), Permanent Sovereignty over Natural Resources of Developing Countries (1972). 128 UNGA Res 3171(XXVIII), Permanent Sovereignty over Natural Resources (1973). 129 A Farmer, ‘Towards a Meaningful Rebirth of Economic Self-Determination: Human Rights Realization in Resource-Rich Countries’ (2006) 39 Journal of International Law and Poli­ tics 417, 421. 130 The ‘blue water thesis’ was developed in opposition to efforts by Belgium to expand the scope of obligations and procedures of Chapter XI of the UN Charter to include indigenous peoples living within the territories of independent States. See J Anaya, Indigenous Peoples in International Law (n 3), 54. 131 See RC Rÿser, ‘The Blue Water Rule and the Right to Self-Determination of Nations’, United Nations – Story 226, available at: https://intercontinentalcry.org/blue-water-rule­ self-determination-nations/ (accessed September 2023). 132 See E Duruigbo, ‘Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law’ (2006) 38(1) George Washington International Law Review 33, 54; M Åhrén, Indigenous Peoples’ Status (n 1), 32 & 35.

52

Setting the stage

located within a territory under colonial domination as well as those resid­ ing in newly formed independent States from being subjects of the right to self-determination (decolonization). Therefore, these indigenous peoples were required to be integrated into the dominant society.133 This position of international law was clearly incorporated into the first international convention adopted during this period to protect indigenous peoples, ILO Convention 107. 4.1.1 ILO Convention 107: integration as its basic policy The ILO, established in 1919 under the League of Nations and later absorbed as a specialized agency of the UN in 1945, was the first international organi­ zation to concern itself with the rights of indigenous peoples. Prompted by concerns over the working conditions and exploitation of indigenous peoples’ labor during the colonial and early decolonization periods, the ILO adopted several instruments dealing with the rights of indigenous peoples. Of those instruments, ILO Convention 107134 was pioneering for the rights of indige­ nous peoples. Not only was the Convention adopted before any major global or regional human rights instruments,135 but the Convention also contains provisions geared at protecting indigenous populations136 against marginali­ zation and discrimination beyond labor issues. The rights recognized by the Convention include, inter alia, the right to non-discrimination, prohibition of compulsory service, the right to temporary special measures,137 recognition of customary laws of indigenous populations,138 the right to social security and health,139 the right to education equally with the rest of the national community,140 and the right to individual and collective ownership of tradi­ tional lands.141 This broad coverage of rights makes the Convention the first binding instrument adopted to specifically and comprehensively address the situations of indigenous peoples. Nonetheless, the Convention aims to protect indigenous peoples by promoting their integration into the dominant society – integration is the

133 P Macklem, Indigenous Recognition in International Law (n 43), 186. 134 Convention Concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries (ILO Convention 107), concluded at Geneva on 26 June 1957, 328 UNTS 247 (entered into force 2 June 1959). 135 The exception, in this regard, is the European Convention on Human Rights (ECHR) which was adopted in 1950. 136 It is worth noting here that ILO Convention 107 used the term ‘indigenous populations’ rather than ‘indigenous peoples’. 137 ILO Convention 107 (n 134), Arts 3 & 15. 138 Ibid., Art 7(1). 139 Ibid., Arts 19 & 20. 140 Ibid., Arts 21–26. 141 Ibid., Art 5(a) & Part II (Arts 11–14).

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fundamental policy and basic orientation of the Convention.142 This basic objective of the Convention is clearly reflected in Article 2(1), which states that ‘[g]overnments shall have the primary responsibility for developing coordinated and systematic action for the protection of the populations con­ cerned and their progressive integration into the life of their respective coun­ tries’.143 Similarly, the Convention allows indigenous populations to ‘retain their own customs and institutions’ only when ‘not incompatible with the national legal system or the objectives of integration programs’.144 Further, the Convention entitles indigenous populations to use their methods of social control only to ‘the extent consistent with the interest of the national com­ munity and with the national legal system’.145 These provisions, amongst many others, unambiguously indicate that the Convention’s primary objec­ tive is to assimilate indigenous peoples into mainstream society. Although Article 2(4) of the ILO Convention 107 prohibits the use of force or coer­ cion as a means of promoting the integration of indigenous peoples into the national community, this ‘safeguard’ did not change the basic assimilation policy of the Convention. Article 2(4) merely restricted the type of measures to be used in achieving integration.146 In this respect, ILO Convention 107 merely marked ‘a shift in policy from forcible assimilation to non-coercive integration’.147 The underlying rationale for the integrationist approach of the Conven­ tion was the continued prevalence of the long-lasting colonial assumption of cultural inferiority of indigenous peoples at the time of its adoption. Article 1(1) makes this assumption clear by defining subjects of the Convention as populations ‘whose social and economic conditions are at a less advanced stage than the stage reached by other sections of the national community’.148 Likewise, Article 3(1) provides that [s]o long as the social, economic and cultural conditions of the populations concerned prevent them from enjoying the benefits of the general laws of the country to which they belong, special measures shall be adopted for the protection of the institutions, persons, property and labor of these populations.149

142 143 144 145 146

P Macklem, Indigenous Recognition in International Law (n 43), 194.

ILO Convention 107 (n 134), Art 2(1) (emphasis added).

Ibid., Art 7 (emphasis added).

Ibid., Art 8.

ILO: Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No

107), Report VI(1) (Geneva 1987), International Labour Conference, 75th Session (Geneva 1988) 27. 147 E Fox-Decent and I Dahlman, Sovereignty as Trusteeship (n 21), 519. 148 ILO Convention 107 (n 134), Art 1(1(a)) (emphasis added). 149 Ibid., Art 3(1) (emphasis added).

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Setting the stage

Effectively, this provision allowed State parties to take any measures they deem beneficial to indigenous peoples regardless of their wishes because it assumed that indigenous peoples were incapable of speaking for them­ selves.150 This presumption of cultural inferiority of indigenous peoples led the drafters of the Convention to think that, at the time, integration was the best approach to protect their rights. In sum, although ILO Convention 107 was adopted during the decoloni­ zation period, it had little to contribute to the decolonization of (the inter­ national law of) indigenous peoples. First, the Convention did not apply to peoples under colonial domination. Rather, it applied only to those indigenous populations living within States who had already acquired their independence.151 Second, the Convention envisaged an outcome contrary to the demands of the indigenous peoples living in independent States: its integration policy facilitated the extinction of the ways of life of indigenous peoples, which are different from that of the dominant soci­ ety. Nonetheless, ILO Convention 107 served as a basis for subsequent progressive developments in international human rights law pertaining to indigenous peoples.152 Another important development in international law emerged in the later stage of the decolonization era, namely, the rejec­ tion of the centuries-old doctrine of terra nullius, discussed in the next section. 4.1.2 Rejection of the doctrine of terra nullius: Western Sahara Case as a pioneer A different understanding of the doctrine of terra nullius emerged in the last quarter of the 20th century. The Advisory Opinion of the ICJ in the West­ ern Sahara Case (1975)153 was pioneering in rejecting the colonial doctrine of terra nullius.154 In this case, the UNGA requested that the ICJ give an advisory opinion on, inter alia, the question of whether Western Sahara, at the time of colonization by Spain in 1884, was terra nullius.155 The Court

150 ILO: Partial Revision of the Indigenous and Tribal Populations Convention 107, 75th Ses­ sion (n 146), 28. 151 For a detailed discussion, see P Macklem, Indigenous Recognition in International Law (n 43), 193–194. 152 For a detailed discussion on developments of human rights law, see section 4 of this chapter. 153 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12. 154 It is worth noting here that the ICJ dealt with the issue of self-determination in an earlier case (the Namibia Advisory Opinion of 1971). However, the doctrine of terra nullius was not an issue in that case, and the ICJ rather focused on the legality of South Africa’s pres­ ence in Namibia in light of the decolonization process (see Namibia Advisory Opinion (n 124)). 155 Western Sahara Advisory Opinion (n 153), [1].

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unanimously concluded that Western Sahara was not terra nullius at the time of colonization by Spain.156 The ICJ held that: Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social or political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilat­ erally through “occupation” of terra nullius by original title but through agreements concluded with local rulers . . . [S]uch agreements with local rulers, whether or not considered as an actual “cession” of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terra nullius.157 Thus, the ICJ expressly recognized that a territory inhabited by (nomadic) indigenous communities who have their own social and political organiza­ tions cannot be considered terra nullius. The Court emphasized that Spain concluded treaties with tribal chiefs at the time of colonization and took this fact as a valid manifestation that Spain itself did not consider Western Sahara terra nullius.158 In so holding, the ICJ unequivocally affirmed that the colonial legal fiction, which proclaims a territory as vacant simply because the inhabiting communities do not pursue a European-type agrarian lifestyle, cannot form part of contemporary international law.159 In this respect, the ICJ not only facilitated the work of the UNGA on decolonization but also laid the foundation for the subsequent evolution of international human rights law concerning the rights of indigenous peoples to land, territories, and natural resources.160 4.1.3 Old wine in new bottles: continued application of terra nullius and mare nullius by other means Although the doctrine of terra nullius was rejected by the ICJ as part of the UN decolonization process, the European settler States imposed and con­ tinued to apply Western notions of law against indigenous peoples after

156 157 158 159 160

Ibid., [81].

Ibid., [80] (emphasis added).

Ibid., [81].

Ibid., [87–89].

For a detailed discussion on the role of the ICJ’s Advisory Opinion to the evolution of indig­ enous peoples’ rights to lands and territories, see WM Reisman, ‘Protecting Indigenous Rights in International Adjudication’ (1995) 89(2) American Journal of International Law 350, 354.

56

Setting the stage

decolonization.161 In other words, newly independent States – formerly part of the European colonial powers – have continued to apply various ver­ sions of the legal fictions of terra nullius and mare nullius to legitimize their control over the lands, marine areas, and natural resources of indigenous peoples.162 In the context of lands and terrestrial natural resources, States have con­ tinued to apply the ‘agriculturalist thesis’, which posits that only cultivation of the land through agriculture gives rise to private property rights, whereas uncultivated land is perceived as ‘wasteland’ belonging to the State.163 As such, intensive, exclusive, and continued use of the land (by individuals) were seen as essential prerequisites for acquiring private property rights to land.164 Accordingly, States regarded indigenous communities as incapable of pos­ sessing title over their traditional lands and territories mainly because they have a nomadic lifestyle and collectively (rather than individually) use the land without leaving visible traces on the landscape by cultivating it through sedentary agriculture.165 In other words, the land use system of indigenous peoples ‘was seen as an outdated and non-rational organization of land utilization’,166 which is neither individual nor does it fulfill the previously mentioned three criteria (i.e., intensive, exclusive, and continued use). This individualistic ‘agriculturalist’ argument or concept of ‘uncultivated’ land was, thus, a new domestic version of the colonial doctrine of terra nul­ lius. Secher observes that ‘just as .  .  . [the doctrine of] terra nullius under international law was expanded to embrace certain inhabited land, the con­ cept of “uncultivated” land was used [at a domestic level] to include land that was inhabited [by indigenous peoples]’.167 As such, ‘the concept of terra nullius has two limbs: it applies to questions of sovereignty (at international law) and to questions of property [at domestic law]’.168 Thus, the concept of ‘uncultivated’ land has operated to exclude indigenous peoples from estab­ lishing property rights over their traditional lands and natural resources.

161 See DC Harris, Fish, Law, and Colonialism: The Legal Capture of Salmon in British Columbia (University of Toronto Press 2001) 86 & generally ch 4. 162 This author discusses domestic law doctrines in this section for two main purposes. First, to indicate how States have transplanted classical international law doctrines into their domestic law to justify their continued dispossession of indigenous peoples’ lands, marine areas, and natural resources. Second, to indicate how and to what extent international law has subsequently evolved to curb such exclusionary doctrines in the following sections. 163 J Gilbert, Nomadic Peoples and Human Rights (n 59), 92–93 & 100. 164 A Fitzmaurice, ‘Sovereign Trusteeship and Empire’ (2015) 16(2) Theoretical Inquiries in Law 447, 457–459. 165 J Gilbert, Nomadic Peoples and Human Rights (n 59), 91. 166 Ibid. 167 U Secher, Aboriginal Customary Law (n 51), 30. 168 Ibid. Åhrén concurs with this understanding of terra nullius (see M Åhrén, Indigenous Peoples’ Status (n 1), 17).

The evolution of international law and indigenous rights

57

States have also applied a similar modified version of the freedom of the seas doctrine with respect to marine or coastal areas traditionally occu­ pied by indigenous peoples. In the 20th century, Selden’s doctrine of mare clausum regained acceptance as coastal States unilaterally extended their maritime jurisdiction further seawards.169 With the further development of the law of the sea – especially with the adoption of the LOSC in 1982 – the area within which the freedom of the seas can be exercised has signifi­ cantly shrunk due to the recognition of coastal State jurisdiction out to 200 nm from the baselines.170 This gives coastal States authority to exclude access to foreign fishers within their respective 200 nm zones. Nonetheless, the extension of coastal States’ maritime jurisdiction did not change the States’ attitude of excluding indigenous peoples’ customary marine ten­ ure.171 Many coastal States adopted a domestic law doctrine applicable to the sea – the right of public access doctrine – which postulates that the sea and its marine resources are the common property of all citizens of a State.172 This means that no individual, group, or community could claim ownership or exclusive use rights to any portion of the sea or the seabed and the associated marine resources or deny others from enjoying them.173 Rather, such resources belong to everyone under the control of a coastal State.174 Unlike land therefore, the sea is conceptualized as not being sus­ ceptible to private property rights. This Western understanding of sea space allows coastal States to continue to ignore existing indigenous relationships with the sea and makes the many and complex indigenous systems of marine tenure worldwide seem invisi­ ble.175 In other words, rights to the sea and its associated resources have shifted from customary marine rights holders (i.e., coastal indigenous peo­ ples) to coastal States. As Sharp puts it, ‘inherited coastal [indigenous peo­ ples’] territories or domains were absorbed into greater State territorial seas

169 DR Rothwell and T Stephens, The International Law of the Sea (Hart 2010) 4. 170 United Nations Convention on the Law of the Sea (LOSC), concluded at Montego Bay on 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994), Arts 2 & 56. 171 MJ Valencia and D VanderZwaag, ‘Maritime Claims and Management Rights of Indig­ enous Peoples: Rising Tides in the Pacific and Northern Waters’ (1989) 12 Ocean & Shore­ line Management 125, 126. 172 SE Jackson, ‘The Water Is Not Empty: Cross-Cultural Issues in Conceptualizing Sea Space’ (1995) 26(1) Australian Geographer 87, 93. The ‘doctrine of public access’ has a common law origin, but it has been widely applied in different jurisdictions (see DC Harris, Landing Native Fisheries: Indian Reserves & Fishing Rights in British Columbia, 1849–1925 (UBC Press 2008) 78. 173 S Jentoft, ‘Governing Tenure in Norwegian and Sami Small-Scale Fisheries: From Common Pool to Common Property?’ (2013) 1 Land Tenure Journal 91, 93. 174 Ibid., 93. 175 N Peterson and B Rigsby, ‘Introduction’ in N Peterson and B Rigsby (eds), Customary Marine Tenure in Australia (Sydney University Press 2014) 3.

58

Setting the stage

[and EEZs] as though they had never existed’.176 Thus, the right to public access can be regarded as a modified domestic continuation of the doctrine of open seas and terra nullius. Cordell describes the connection between the doctrine of terra nullius and the public right of access as follows: Something of the same mentality which kept terra nullius afloat for so long perpetuated a myth denying the possibility and practicality of establishing and defending property rights in the . . . sea. Indigenous fishing and mari­ time communities were thought to be analogous to hunter-gatherers. It was widely assumed such economies preclude the formation of property rights; the nature of the sea as a continuous water-column, and the living resources it contained were thought to be, by definition, “common property”.177 The public right of access not only vests coastal States with ownership rights over certain marine areas (including the authority to manage the associ­ ated marine resources on behalf of all citizens) but also allows an increasing encroachment into the customary sea holdings of coastal indigenous com­ munities by outsider non-indigenous fishers. Therefore, the Western notion of a public right of access contradicts indigenous communities’ existing cus­ tomary and traditional practices of marine resource use and management and has led to the disappearance of their customary laws governing the sea. In this respect, Sharp observes that the public right of access has resulted in indigenous communities being ‘treated dismissively, their laws and customs were classified as primitive, and they themselves were often written off as racially inferior’.178 In sum, States have continued applying new versions of ‘old’ international law doctrines against indigenous peoples inhabiting their national territories – ignoring the inherent rights of indigenous peoples over their lands, marine areas, and natural resources. These Western conceptions of property con­ stitute contemporary forms of denying indigenous peoples’ rights to lands, marine areas, and the associated natural resources. The notions of terra nul­ lius or mare nullius have then, indirectly, been perpetuated. 4.2 Development of international human rights law From the 1960s, and parallel to the decolonization process, there have been tremendous developments in international human rights law. During this 176 N Sharp, ‘Reimagining Sea Space: From Grotius to Mabo’ in N Peterson and B Rigsby (eds), Customary Marine Tenure in Australia (Sydney University Press 2014) 87. 177 J Cordell, ‘Indigenous Peoples’ Coastal-Marine Domains: Some Matters of Cultural Docu­ mentation’, paper given at Turning the Tide: Indigenous Peoples and Sea Rights Conference (Northern Territory University, Darwin 1993) 2. 178 N Sharp, Reimagining Sea Space (n 176), 80.

The evolution of international law and indigenous rights

59

period, several parallel standards setting activities took place at the UN level, within the ILO system, and in regional human rights systems. This section briefly discusses and evaluates the extent to which those developments recog­ nize the rights of indigenous peoples. 4.2.1 Adoption of general global and regional human rights instruments Pursuant to its objective set out in the Charter, the UN has adopted several universally applicable human rights instruments. The first such instrument is the 1948 Universal Declaration of Human Rights (UDHR),179 which acknowledges a wide list of fundamental rights and freedoms, including, inter alia, the right to non-discrimination, the right to property, and the right to culture.180 To translate the rights contained in the UDHR into legally binding instruments, the UN subsequently adopted other general global human rights treaties, including the International Convention on the Elimination of All Forms of Racial Discrimination (CERD Convention),181 the International Covenant on Civil and Political Rights (ICCPR),182 and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).183 During the early period of the UN, parallel developments also took place at the regional level where important general regional human rights instruments, such as the European Convention on Human Rights (ECHR),184 the American Convention on Human Rights (ACHR),185 and the African Charter on Human and Peoples Rights (ACHPR),186 were concluded. These general global and regional human rights instruments share cer­ tain common features. First, they affirm the notion that human rights apply only to individuals and not to collectives – the exception being the right to self-determination of peoples incorporated in common Article 1 of the 179 Universal Declaration of Human Rights (UDHR), UNGA Res 217 (III) (10 December 1948).

180 Ibid., Arts 1, 17 & 27(1).

181 International Convention on the Elimination of All forms of Racial Discrimination (CERD

Convention), concluded at New York on 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). 182 International Covenant on Civil and Political Rights (ICCPR), concluded at New York on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 183 International Covenant on Economic, Social, and Cultural Rights (ICESCR), concluded at New York on 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). 184 European Convention on Human Rights: Convention for the Protection of Human Rights and Fundamental Freedoms, adopted at Rome on 4 November 1950, 213 UNTS 2 (entered into force 3 September 1953). 185 American Convention on Human Rights: ‘Pact of San Jose, Costa Rica’, signed at San Jose on 22 November 1969, 1144 UNTS 143 (entered into force 18 July 1978). 186 African (Banjul) Charter on Human and Peoples’ Rights, concluded at Nairobi on 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986).

60

Setting the stage

ICCPR and the ICESCR, and Articles 20 and 21 of the ACHPR.187 Second, as a natural consequence of the first common feature, none of these general human rights instruments expressly recognize indigenous peoples as sub­ jects of the various rights contained therein. This was so even if the issue of indigenous peoples was already on the agenda at the time – as recognized under the ILO Convention 107 (discussed previously). Hence, the provisions of the general global and regional human rights instruments, understood at the time of their adoption, had little/no application for indigenous peoples as collectives. Nonetheless, the UN treaty monitoring bodies and regional human rights courts and commissions have widely interpreted and applied the relevant general human rights norms in a manner that addresses the specific problems and claims of indigenous peoples.188 In so doing, these human rights bodies have played a significant role in adapting and evolving general human rights instruments to the specific contexts of indigenous peoples.189 Indeed, indig­ enous peoples around the globe have now widely used the general global and regional human rights treaties and their monitoring mechanisms as principal avenues for the recognition and protection of their various rights, including the right to lands and natural resources. As briefly discussed in the next sec­ tion, international human rights law specific to indigenous peoples has also shown tremendous evolution since the 1980s. 4.2.2 Evolution of indigenous-specific human rights instruments 4.2.2.1 ILO CONVENTION 169: EVOLUTION AWAY FROM ASSIMILATION

The principle of integration and the presumed cultural inferiority of indig­ enous peoples – central principles that oriented the ILO Convention 107 – became unacceptable in the late 1970s. In this regard, the Cobo Study was the first study that criticized the integrationist approach of the ILO Con­ vention 107, revealed its inadequacies in fully addressing the problems and claims of indigenous peoples, and recommended that it be revised.190 187 See E Stamatopoulou, ‘Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic’ (1994) 16(1) Human Rights Quarterly 58, 60. 188 See IACHR, Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Nat­ ural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, OEA/Ser.L/V/II, Doc 56/09 (30 December 2009); N Bankes, ‘The Protection of the Rights of Indigenous Peoples to Territory through the Property Rights Provisions of International Human Rights Instruments’ (2011) 3 Yearbook of Polar Law 57. 189 See B Saul, Indigenous Peoples and Human Rights: International and Regional Jurispru­ dence (Hart 2016). 190 JRM Cobo (Special Rapporteur), UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination against Indigenous Populations, Final Report (last part), UN Doc E/CN.4/Sub. 2/1983/21/Add.8 (30 Septem­ ber 1983), [335 & 336].

The evolution of international law and indigenous rights

61

In revising the existing standards, the Cobo study recommended that ‘more suitable and precise substantive provisions and more practical and effective procedural principles are needed. Particularly, in substan­ tive terms stress must be placed on ethno-development and independence or self-determination, instead of on “integration and protection” ’.191 In response, the ILO Governing Body established a Committee of Experts on the Revision of the Indigenous and Tribal Populations Convention, which revised and replaced ILO Convention 107 with ILO Convention 169 in 1989.192 ILO Convention 169 introduced several changes to the previous con­ vention. First, Convention 169 characterizes indigenous rights as vesting in ‘indigenous peoples’, as opposed to ILO Convention 107’s reference to ‘indigenous populations’. This implies that Convention 169 recognizes indig­ enous peoples as ‘peoples’, within the meaning of international law, who are entitled to exercise collective rights.193 Second, as opposed to integra­ tion, Convention 169 bases itself on the principle of recognition and respect for the distinct cultures, ways of life, traditions, and customs of indigenous peoples – it evolves away from assimilation.194 Third, it provides stronger protection for the ownership and possession rights of indigenous peoples over their traditional lands and natural resources than provided for under Convention 107.195 For example, Convention 169 broadly conceptualizes indigenous lands as ‘includ[ing] the concept of territories, which covers the total environment of the areas which the [indigenous] peoples concerned occupy or otherwise use’.196 Fourth, it recognizes the right to consultation and participation of indigenous peoples in matters that may affect them, which may include obtaining their consent.197 In short, ILO Convention 169 is the most important legally binding international instrument that specifi­ cally (and comprehensively) deals with the rights of indigenous peoples. The Convention significantly departed from the orientation of ILO Convention 107, providing stronger recognition and protection for the various rights of indigenous peoples as well as attaching fewer and narrower exceptions, limi­ tations, and qualifications to the recognized rights of indigenous peoples than its predecessor did. However, it is worth noting that the ILO Convention 107 remains in force for those States that have ratified it but that have yet to 191 Ibid., [337]. 192 Currently, 24 States have ratified ILO Convention 169. See available at: www.ilo.org/ dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312314 (accessed September 2023). 193 P Macklem, Indigenous Recognition in International Law (n 43), 197. 194 For a detailed discussion, see L Heinämäki, The Rapidly Evolving International Status of Indigenous Peoples (n 42), 193. 195 ILO Convention 169 (n 112), Arts 13–19. 196 Ibid., Art 13(2). 197 Ibid., Arts 6, 7 & 16.

62

Setting the stage

ratify ILO Convention 169.198 In this respect, ILO Convention 107 should be interpreted and applied in the spirit of ILO Convention 169 primarily because the latter convention reflects ‘a central feature of international law’s contemporary treatment of indigenous peoples’ demands’.199 4.2.2.2 THE ROAD TO THE ADOPTION OF THE UNDRIP

The Cobo study also served as a catalyst for the further evolution of interna­ tional law concerning the rights of indigenous peoples by sketching a roadmap for subsequent UN standard-setting activities.200 In addition to its recommen­ dation that ILO Convention 107 be revised, the Cobo study also called for the adoption of the UNDRIP as an interim step to the adoption of a legally binding international convention.201 The UN Economic and Social Council (ECOSOC) responded to the recommendations of the Cobo study by establishing a Work­ ing Group on Indigenous Populations (WGIP) in 1982 as a subsidiary organ of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. The WGIP was mandated to review national developments per­ taining to the promotion and protection of the human rights and fundamental freedoms of indigenous peoples and to develop international standards con­ cerning the rights of indigenous peoples – considering both the similarities and differences in their situations and aspirations throughout the world.202 In line with its mandate to develop international standards, the WGIP prepared a draft Declaration on the rights of indigenous peoples. The final text of the draft was submitted to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1993.203 The WGIP’s draft Declaration was approved by the Sub-Commission in 1994204 and carried

198 A total of 27 States ratified ILO Convention 107, of which 9 have ratified ILO Convention 169. This means that ILO Convention 107 is still in force in 18 States. For details of the ratification status of the ILO Convention 107, available at: www.ilo.org/dyn/normlex/en/f? p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312252 (accessed Septem­ ber 2023). 199 J Anaya, Indigenous Peoples in International Law (n 3), 58.

200 D Cambou, The Legal Significance of the Right of Indigenous Peoples to Self-Determination

and Its Implications for the SÁMI People (PhD Thesis in Law 2016) 145. 201 JRM Cobo (Special Rapporteur), Study of the Problem of Discrimination, 1983 (n 190), [312]. 202 Economic and Social Council Res 1982/34, ‘Study of the Problem of Discrimination against Indigenous Populations’ (28th plenary session, 7 May 1982), [1 & 2]. 203 For a detailed discussion of the role of the WGIP, see EIA Daes, ‘The Contribution of the Working Group on Indigenous Populations to the Genesis and Evolution of the UN Decla­ ration on the Rights of Indigenous Peoples’ in C Charters and R Stavenhagen (eds), Mak­ ing the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (IWGIA 2009) 48–76. 204 The Sub-Commission on Prevention of Discrimination and Protection of Minorities Res 1994/45, ‘Draft United Nations Declaration on the Rights of Indigenous Peoples’, UN Doc E/CN.4/Sub.2/1994 (26 August 1994), [4(a)].

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forward from 1995 by the then UN Commission on Human Rights through another open-ended inter-sessional working group established for the pur­ pose of elaborating the draft Declaration.205 The Declaration was finally approved by the newly created UN Human Rights Council in 2006.206 After the more than two decades long deliberative process by States and indigenous peoples’ representatives, the UNGA eventually adopted the UNDRIP in 2007 by an overwhelming majority vote – with 143 votes in favor, 4 negative votes and 11 abstentions.207 The UNDRIP fills gaps in existing international law on indigenous rights, translates opinions of well-respected international bodies into law, and crys­ talizes any additional protection indigenous peoples need for their survival and development.208 In this respect, the UNDRIP covers a wide range of indigenous peoples’ rights, starting with the core right to self-determination – which right was omitted in the previous indigenous-specific human rights instruments.209 The UNDRIP also guarantees several other specific rights that elaborate on the content of the right to self-determination, such as the right to autonomy or self-government, the right to cultural integrity, collective rights to lands and natural resources, the right to equality and non-discrimination, and the right to consultation, including the free, prior, and informed con­ sent (FPIC) of indigenous peoples.210 In short, the UNDRIP is a cornerstone of contemporary international legal standards concerning indigenous rights, which not only extensively replicates existing treaty law but also clarifies, progressively develops, and consolidates existing norms of international law and, as such, it offers an evolved understanding of the provisions of the ear­ lier treaties.211 Although the UNDRIP is not a legally binding instrument, it has special significance for the protection of the rights of indigenous peoples.

205 UN Commission on Human Rights Res 1995/32, ‘Establishment of a Working Group of the Commission on Human Rights to Elaborate a Draft Declaration in accordance with para­ graph 5 of General Assembly Resolution 49/214 of 23 December 1994’ (3 March 1995). 206 UN Human Rights Council Res 2006/2 (21st meeting, 29 June 2006), [1]. The UN Human Rights Council was established by the UN General Assembly in 2006 replacing the UN Commission on Human Rights (see UNGA Res 60/251, UN Doc A/RES/60/251 (72nd plenary meeting, 15 March 2006). 207 The States who voted against were: Canada, Australia, New Zealand, and the United States of America (known as the CANZU group). All these States later changed their position and formally endorsed the Declaration. 208 DS Dorough, ‘The Significance of the Declaration on the Rights of Indigenous Peoples and Its Future Implementation’ in C Charters and R Stavenhagen (eds), Making the Declara­ tion Work: The United Nations Declaration on the Rights of Indigenous Peoples (IWGIA 2009) 264. 209 UNDRIP (n 113), Art 3.

210 Ibid., Arts 2, 4, 10, 18, 19 & 25–29.

211 For a detailed discussion of the contribution of UNDRIP to general human rights stand­ ards, see A Xanthaki, ‘Indigenous Rights at the United Nations: Their Impact on Interna­ tional Human Rights Standards’ (2014) 71(3–4) Europa Ethnica 69.

64

Setting the stage

In this regard, the UNGA encouraged the UN treaty monitoring bod­ ies to consider the UNDRIP in their respective jurisprudence.212 Indeed, the UNDRIP has significantly informed the practice of not only the UN treaty monitoring bodies but also the jurisprudence of Inter-American and African human rights courts and commissions. These bodies have made frequent reference to the Declaration while interpreting and applying their respec­ tive human rights instruments to recognize the various rights of indigenous peoples, especially the rights to lands, territories, and natural resources.213 In this context, the view that ‘[UNGA] resolutions that reflect opinio juris communis and further the goals of international human rights law and asso­ ciated jurisprudence would be considered to have binding effect’214 perfectly reflects the UNDRIP. Indeed, some of the provisions of the UNDRIP, if not the Declaration in its entirety, reflect existing or emerging norms of custom­ ary international law215 or, at the very least, represent authoritative inter­ pretations of relevant provisions of existing legally binding human rights instruments.216 4.2.2.3 REGIONAL INDIGENOUS SPECIFIC INSTRUMENT: THE ADRIP

The General Assembly of the Organization of American States (OAS) adopted the American Declaration on the Rights of Indigenous Peoples (ADRIP) in 2016.217 The ADRIP is the first and yet only regional human rights instru­ ment specific to indigenous peoples.218 The ADRIP repeats the core rights of indigenous peoples already addressed by the existing body of general and indigenous-specific human rights instruments. These rights include, inter alia, the right to internal self-determination;219 the right to cultural integrity free from any assimilation attempts;220 the right to own, use, develop and con­ trol traditional lands, territories and natural resources;221 and the right to 212 See Outcome Document of the High-level Plenary Meeting of the General Assembly Known as the World Conference on Indigenous Peoples, UNGA Res 69/2, UN Doc A/RES/69/2 (4th plenary meeting, 22 September 2014), [29]. 213 See Chapters 3 and 4 of this book. 214 BS Chimni, ‘Customary International Law: A  Third World Perspective’ (2018) 112(1) American Journal of International Law 1, 42. 215 See generally S Nykolaishen, ‘Customary International Law and the Declaration on the Rights of Indigenous Peoples’ (2012) 17 Appeal 111. 216 For further discussion, see DS Dorough, The Significance of the Declaration (n 209). 217 ADRIP (n 114). 218 The three Nordic countries (Norway, Sweden, and Finland) and their respective Sami Par­ liaments proposed a draft Nordic Sami Convention in 2005, but its adoption is still pending. See Draft Nordic Sami Convention, available at: www.regjeringen.no/globalassets/upload/ aid/temadokumenter/sami/sami_samekonv_engelsk.pdf (accessed September 2023). 219 ADRIP (n 145), Arts 3, 4 & 21.

220 Ibid., Arts 10 & 13.

221 Ibid., Art 25.

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65

consultation, including FPIC.222 The restatement of the rights that are already addressed by the existing human rights instruments indicates the increasing commitment of OAS member States to indigenous peoples, which in turn helps to crystalize those rights into (regional) customary international law.223 The ADRIP also addresses specific issues relevant to the American region that were not covered by previous instruments, such as the rights of indig­ enous peoples in ‘voluntary isolation or initial contact’.224 It also deals with the recognition and respect for indigenous peoples’ historical treaties, agree­ ments, and other constructive arrangements – the other issue relevant to the indigenous peoples of the American region.225 In short, the ADRIP has been considered a historical milestone in the recognition, promotion, and protec­ tion of indigenous peoples’ rights in the American region.226 Read in conjunc­ tion with ILO Convention 169, the UNDRIP, and other general global and regional human rights instruments; the ADRIP serves as an important legal addition – protecting a wide range of indigenous rights – to the corpus of instruments available to organs of the OAS, including the Inter-American Court of Human Rights (IACtHR) and the Inter-American Commission on Human Rights (IACHR).227 All in all, several important developments in international law per­ taining to indigenous peoples have taken place in the era of the UN. The long-lasting colonial doctrine of terra nullius was abolished first by the ICJ as part of the UN decolonization process and, subsequently, by national courts as a discriminatory fiction.228 General and indigenous­ specific human rights instruments have also progressively developed both at the international and regional levels. Equally important, the UN treaty-monitoring and regional human rights bodies have interpreted and adapted the relevant general norms to protect the rights of indigenous peoples relating to traditional lands, territories, and natural resources in an evolutionary manner. The examination has shown that the legal personality of indigenous peoples currently receives clear recognition.

222 Ibid., Arts 23 & 29(4).

223 See S Errico, ‘The American Declaration on the Rights of Indigenous Peoples’ (2017) 21(7)

American Society of International Law. 224 ADRIP (n 114), Art 26. 225 Ibid., Art 24. 226 OAS Media Center, A 17-Year Wait Pays off for Indigenous Peoples (press release, E-075/16, 15 June  2016), available at: www.oas.org/en/media_center/press_release.asp?sCodigo=E­ 075/16 (accessed September 2023). 227 In a recent resolution, the General Assembly of the OAS urged member States, the General Secretariat, and the institutions of the OAS ‘to take all necessary steps to implement the [ADRIP]’. See General Assembly of OAS, Promotion and Protection of Human Rights, AG/ Res2941 (XLIX-O/19), Adopted on 28 June 2019, [1]. 228 See Mabo and Others v The State of Queensland (No 2) [1992] HCA 23, 175 CLR 1 (3 June 1992) 175.

66

Setting the stage

Indigenous peoples have been acknowledged as distinct peoples with spe­ cial collective rights and a distinct role in international decision-making processes.229 5. Conclusion This chapter has shown how international law has progressively evolved to accommodate and embrace the diverse rights of indigenous peoples. While pre-classical international law, basing itself on humanist natural law, offered limited recognition for indigenous peoples as holders of rights to their lands and territories, indigenous peoples completely lost such rights upon the emergence of a secular State-centered ‘law of nations’ – specifically upon the evolution of the ‘law of nations’ into a purely posi­ tivist international law. In fact, colonial States used various doctrines of international law as tools to facilitate their colonial endeavors and to jus­ tify their occupation of indigenous peoples’ lands and territories, including marine space. Nonetheless, the position of international law on indigenous peoples has progressively shifted after WWII. Despite the actions of States to persistently exclude indigenous peoples from the international arena, indigenous peoples started to deploy international law – which originally suppressed them in the first place – for their own benefit during the UN era. Xanthaki rightly notes that ‘although indigenous peoples have not been part of the creation of international law, they have refused to stand on its periphery and have determined to become equal partners in its evolution’.230 In particular, inter­ national human rights law has significantly evolved, both at the global and regional level, and indigenous peoples are now recognized as distinct peoples having unique demands and interests under international law. Contempo­ rary international law follows two pathways to protect the rights of indig­ enous peoples to their lands, territories, and natural resources. First, based on indigenous-specific human rights instruments and second, through the evolutive interpretation and application of existing norms of general human rights instruments that do not specifically (and expressly) deal with indig­ enous peoples. However, the evolution of international law pertaining to indigenous peoples is unfinished and is an ongoing process. As Fox-Decent and Dahl­ man observe, ‘international law remains plagued by its formative contradic­ tion as it struggles to recognize and accommodate the status of indigenous 229 FG Isa, ‘Indigenous Peoples: From Objects of Protection to Subjects of Rights’ in A Brysk and M Stohl (eds), Expanding Human Rights: 21st Century Norms and Governance (Edward Elgar 2017) 55–74. 230 A Xanthaki, Indigenous Rights and the United Nations Standards: Self-Determination, Culture and Land (CUP 2007) 2.

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peoples, indigenous treaties, and indigenous rights’.231 This is particularly true with respect to the recognition of the rights of indigenous peoples relating to marine areas and marine resources. States still resist recogniz­ ing those rights. The following chapters of this book explore and detail the rights of indigenous peoples to their traditional lands, marine space, and marine resources.

231 E Fox-Decent and I Dahlman, Sovereignty as Trusteeship (n 21), 512.

Part II

International human rights law and the rights of indigenous peoples to lands, marine space, and natural resources

Chapter 3

International human rights law and indigenous peoples Norms relevant to the rights to lands and natural resources

1. Introduction The rights of indigenous peoples to lands, territories, and natural resources have a strong basis in contemporary international human rights law. The various general human rights law instruments, human rights instruments spe­ cific to indigenous peoples, and the jurisprudence of treaty monitoring bodies and human rights courts and commissions all address the subject. This chap­ ter examines the norms of international human rights law that are generally applicable to the rights of indigenous peoples to traditional lands, territories, and natural resources. The relevant norms include, inter alia, the right to self-determination, the right to cultural integrity, the right to property, the right to non-discrimination, and the right to consultation and participation – all of which are discussed in sections  2 through 6 of this chapter. Finally, section 7 provides some concluding remarks. The overall aim of this chapter is to provide a general foundation for the assessment of the application of international human rights law to the rights of indigenous peoples relating to marine space and marine resources – discussed in the subsequent chapters of this book. 2. The right to self-determination: an evolving grand human right norm The right to self-determination is a collective right of people. The norm is grounded on the premise that ‘human beings, individually and as groups, are equally entitled to be in control of their own destinies’.1 As discussed in Chapter  2, the principle of self-determination of peoples was widely used in the context of decolonization following its incorporation into the United Nations (UN) Charter and several UN General Assembly (UNGA) resolutions.

1 J Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Post Declaration Era’ in C Charters and R Stavenhagen (eds), Making the Declaration Work: the UN Declaration on the Rights of Indigenous Peoples (IWGIA 2009) 184, 187.

DOI: 10.4324/9781003242772-5

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However, the content, scope, legal status, and holders of the right to self­ determination have evolved considerably over time. Upon its incorporation into various human rights instruments, the right to self-determination has become a concrete human right of people that entails direct and immediate legal obligations for State parties.2 Common Article 1(1) of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides that ‘[a]ll peoples have the right to self-determination. By vir­ tue of that right they freely determine their political status and freely pursue their economic, social, and cultural development’.3 Of the general regional human rights instruments,4 the African Charter on Human and Peoples’ Rights (ACHPR) recognizes the right to self-determination under Articles 20 and 21. Article 20 stipulates that ‘[a]ll peoples . . . shall have the unquestion­ able and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen’.5 These provisions make clear that the content of the right to self-determination comprises political, economic, social, and cultural aspects and that the right to self-determination is a grand umbrella norm in light of which the exercise of political, economic, social, and cultural rights is assessed.6 The economic dimension of the right to self-determination is of particular importance in the context of this book. The right to economic self-determination can be defined as the right of all peoples ‘to dispose freely of the natural resources’ found within the limits of their territories.7 The term ‘dispose of’ in relation to the right to economic self-determination means ‘to have at

2 R McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 International and Comparative Law Quarterly 857. 3 International Covenant on Civil and Political Rights, concluded at New York on 16 Decem­ ber 1966, 999 UNTS 171 (entered into force 23 March 1976), Art 1; International Covenant on Economic, Social, and Cultural Rights, concluded at New York on 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), Art 1 (emphasis added). 4 The European Convention on Human Rights (ECHR) and the American Convention on Human Rights: ‘Pact of San Jose, Costa Rica’, signed at San Jose on 22 November 1969, 1144 UNTS 143 (entered into force 18 July 1978) does not contain an express provision dealing with the right to self-determination. 5 African (Banjul) Charter on Human and Peoples’ Rights (ACHPR), concluded at Nairobi on 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986), Art 20 (emphasis added). 6 D Cambou, ‘The UNDRIP and the Legal Significance of the Right of Indigenous Peoples to Self-Determination: A Human Rights Approach with a Multidimensional Perspective’ (2019) 23(1–2) International Journal of Human Rights 34. 7 A Farmer, ‘Towards a Meaningful Rebirth of Economic Self-Determination: Human Rights Realization in Resource-Rich Countries’ (2006) 39 Journal of International Law and Politics 417, 418; NJ Schrijver, ‘Natural Resources, Permanent Sovereignty Over’ (2008) Max Planck Encyclopedia of Public International Law 1, 1.

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one’s disposal powers of decision-making as to how natural resources are to be used’.8 During the period of decolonization – highlighted in Chapter 2 – the right to economic self-determination was associated with secessionary self-determination with the objective of protecting the resources of peoples living under colonial domination from colonial States and, thereby, facili­ tating their independence. Nonetheless, in the postcolonial era, the right to economic self-determination has become a human right of all peoples to be exercised within or claimed against, an independent State. Common Article 1(2) of the twin human rights covenants recognizes the right to economic self-determination, providing that: All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of interna­ tional economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.9 Similarly, Article 25 of the ICESCR and Article 47 of the ICCPR reaffirm, in identical words, the right to economic self-determination, stipulating that ‘[n]othing in the present Covenant[s] shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources’. Thus, the twin human rights covenants recognize the right to economic self-determination as an inherent right of peoples and, thereby, authorize them to freely dispose of their natural resources ‘for their own ends’, including to fulfill their subsistence needs.10 At the regional level, the ACHPR recognizes the rights of peoples to eco­ nomic self-determination under Article 21, which states that ‘[a]ll peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it’.11 The Charter further strengthened this provision under Arti­ cle 22(1), providing that ‘[a]ll peoples shall have the right to their economic, social, and cultural development with due regard to their freedom and iden­ tity’. Thus, the African Charter provides for a reinforced expression of the right to economic self-determination in more detailed and stronger terms than the twin human rights conventions. It makes the right to economic

8 NJ Schrijver, Sovereignty Over Natural Resources: Balancing Rights and Duties (Cambridge University Press 1997) 36. 9 ICCPR (n 3) and ICESCR (n 3), Art 1(2) (emphasis added). 10 For a detailed discussion of the human right to subsistence, see J Tomalty, On Subsistence and Human Rights, PhD Thesis (University of St Andrews 2011); AM Dussias, ‘Spirit Food and Sovereignty: Pathways for Protecting Indigenous Peoples’ Subsistence Rights’ (2010) 58 Cleveland State Law Review 273. 11 ACHPR (n 5), Art 21(1) (emphasis added).

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self-determination unquestionable, inalienable, and absolute, declaring that ‘in no case shall a people be deprived of’ their right to freely dispose of their natural resources.12 The peoples are the sole beneficiaries of the exploitation of natural resources and are entitled to the lawful recovery of such resources and adequate compensation in the event of dispossession.13 In sum, the right to self-determination is a widely recognized jus cogens14 rule of international law incorporated in core international human rights instruments. In particular, the right to economic self-determination enables peoples to take control over their resources and ‘encourages democratic participation in order to determine the best use of those resources for their own benefit’.15 All of the human rights instruments that recognize the right to self-determination (discussed in this section) confirm that ‘peoples’ are the holders of the right to self-determination, while State parties are duty­ bound to respect and promote the realization of the right to comply with their human rights commitments. That said, none of the instruments defines the term ‘peoples’. This raises a question as to whether indigenous peoples are ‘peoples’ entitled to the right to self-determination. 2.1 Indigenous peoples as holders of the right to self-determination The application of the right to self-determination to indigenous peoples was debated for some time based on differing interpretations of the term ‘peo­ ples’. States generally maintained that the right to self-determination applies only to peoples under colonial domination16 or to ‘aggregate populations’ of independent States17 and not to any portion of the population of a State. The result was that indigenous peoples were not considered ‘peoples’ enti­ tled to self-determination. Nonetheless, limiting the application of the right to self-determination to peoples under colonial domination and to the entire population of a State is restrictive and has received little support 12 Ibid., Art 21(1). 13 Ibid., Art 21(2). 14 Article 53 of the Vienna Convention on the Law of Treaties (VCLT) defines jus cogens or a peremptory norm as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’. 15 A Farmer, Towards a Meaningful Rebirth of Economic Self-Determination (n 7), 420. 16 For a detailed discussion, see K Knop, Diversity and Self-Determination in International Law (CUP 2002) 54 & 58; RN Kiwanuka, ‘The Meaning of ‘Peoples’ in the African Charter on Human and Peoples’ Rights’ (1988) 82(1) American Journal of International Law 80. 17 For example, principles VII & VIII of the Final Act of the Conference on Security and Coop­ eration in Europe (Helsinki Declaration of 1975) articulate that the holders of the right to self-determination are all peoples of a State. See also E Duruigbo, ‘Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law’ (2006) 38(1) George Washington International Law Review 33, 52–56.

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in the post-colonial period and in the era of a multicultural society.18 Such restrictive understanding contradicts the notion that self-determination is a continuing right – a right that evolves over time to accommodate the contem­ porary needs of the international community, including indigenous peoples.19 Accordingly, international law and the practice of human rights bodies have recently accepted the application of the right to self-determination in the con­ text of indigenous peoples. Specifically, the common Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the American Declaration on the Rights of Indigenous Peoples (ADRIP) replicate common Article 1 of the twin human rights conventions in the context of indigenous peoples’ right to self-determination.20 However, these two instruments limit the scope of application of indig­ enous peoples’ right to self-determination to the exercise of autonomy or self-government in matters relating to internal and local affairs.21 This means that indigenous peoples have the right to be consulted, to participate, and to make decisions in all internal and local matters – be they political, eco­ nomic, social, or cultural – affecting their way of life, but they do not have the right to form an independent State.22 These indigenous-specific human rights instruments, therefore, clearly recognize the internal self-determination of indigenous peoples, including its economic dimension.23 Yet, the right to internal self-determination of indigenous peoples is not limited to purely domestic matters confined within national borders. Rather, it includes the right of indigenous peoples to freely maintain and develop relations and cooperation with the international community across borders24 as well as

18 A Xanthaki, Indigenous Rights and the United Nations Standards: Self-Determination, Cul­ ture and Land (CUP 2007) 146. 19 K Knop, Diversity and Self-Determination (n 16) argues that the twin human rights cov­ enants ‘contain no provision permitting the notion of “peoples” to be circumscribed and interpreted restrictively; the wording of [common Article 1] tends on the contrary to confer an extensive definition on the term peoples’ (at 58). 20 Article 3 of the Draft Nordic Sami Convention also expressly recognizes the Sami people of Finland, Norway, and Sweden as ‘peoples’ entitled to exercise the right to internal self-deter­ mination (see Draft Nordic Sami Convention, available at: www.regjeringen.no/globalassets/ upload/aid/temadokumenter/sami/sami_samekonv_engelsk.pdf (accessed September 2023). 21 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), UN General Assembly Resolution 61/295 (adopted 13 September 2007), Arts 4 & 46; American Declara­ tion on the Rights of Indigenous Peoples (ADRIP), AG/Res 2888 (XLVI-O/16), adopted at Washington, on 15 June 2016, Arts 4 & 21(1). 22 For a detailed discussion, see A Xanthaki, Indigenous Rights and United Nations Standards (n 18), 140–145. 23 Article 32(1) of UNDRIP specifically recognizes the right to economic self-determination stipulating that indigenous peoples have a right ‘to determine and develop priorities and strategies for the development and use of their lands, territories and resources’. 24 See UNDRIP, Art 36; and ILO Convention 169, Art. 32. This way of understanding indig­ enous peoples’ right to self-determination is particularly important for the same indigenous

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their right to be represented in international organizations and to participate in various international decision-making processes.25 The practice of human rights treaty monitoring bodies has also embraced the right of indigenous peoples to internal self-determination under their respective conventions. In particular, the UN Human Rights Commit­ tee (HRC) and the Committee on Economic, Social, and Cultural Rights (CESCR) have frequently affirmed the right of indigenous peoples to internal self-determination, invoking common Article 1 in their concluding obser­ vations on the reports of several States.26 In recent decades, the African human rights system has also recognized indigenous peoples of the continent as ‘peoples’ capable of exercising the right to internal self-determination. The practice of human rights bodies concerning the economic dimension of indigenous peoples’ right to self-determination (i.e., the right to lands and natural resources), is particularly significant and is discussed in detail in the next section. 2.1.1 Practices of treaty monitoring and regional human rights bodies with respect to the rights of indigenous peoples to economic self-determination Various human rights bodies have affirmed the application of the right to eco­ nomic self-determination for indigenous peoples. The practice of the HRC shows that the right of indigenous peoples to internal self-determination includes a right to freely dispose of their natural resources as well as the right ‘not to be deprived of the means of subsistence’ under Article 1 of the ICCPR. In its 1999 Concluding Observation on Norway, the HRC expressed its con­ cern over the State party’s failure to report on ‘the Sami people’s right to self­ determination under article 1 of the Covenant, including paragraph 2 of that article’.27 Similarly, the HRC criticized Sweden under Article 1 of the ICCPR for unduly limiting the role of the Sami Parliament in decision-making pro­ cesses on issues affecting the traditional lands and economic activities of the indigenous Sami people.28 The HRC recommended that Sweden ‘take steps to involve the Sami by giving them greater influence in decision-making affect­ ing their natural environment and their means of subsistence’, as stipulated

25

26 27 28

peoples residing within the borders of two or more States, such as the Sami, Inuit, Aleut, Gwich’in and Athabaskan indigenous peoples of the Arctic States. For a detailed discussion of the content and scope of indigenous peoples’ right to internal self-determination, see J Anaya, The Right of Indigenous Peoples to Self-Determination in the Post Declaration Era (n 1); M Åhrèn, Indigenous Peoples’ Status in the International Legal System (OUP 2016), esp. ch 6. See also CERD Committee, General Recommendation No 21: The Right to Self-Determination (55th session 1996), esp [5]). HRC, Concluding Observation: Norway, UN Doc CCPR/C/79/Add. 112 (1999), [17]. HRC, Concluding Observation: Sweden, UN Doc CCPR/CO/74/SWE (2002), [15].

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under Article 1(2) of the ICCPR.29 In 2016, while requiring further measures to give effect to the Sami peoples’ right under Article 1, the Committee appre­ ciated the activities that Sweden took ‘to further advancing the interests of the Sami people and to realize their right to self-determination’, in particular, the amendment of its ‘Constitution .  .  . wherein Sami have been explicitly recognized as a people’.30 In its 2004 Concluding Observation on Finland, the HRC criticized the State party for its failure to provide ‘a clear answer concerning the rights of the Sami as an indigenous people . . . in the light of article 1 of the Covenant’.31 The Committee further reiterated its concern over the State party’s failure to settle the question of the Sami right to land and natural resource ownership as well as the various public and private uses of land that affect the Sami’s tra­ ditional means of subsistence and endanger their traditional culture, way of life and identity.32 The HRC expressed similar concerns in its 2021 Conclud­ ing Observation and recommended Finland ‘speed up the process of revising the Sami Parliament Act’, in particular its section 9, on the principle of free, prior, and informed consent (FPIC), ‘with a view to respecting the Sami peo­ ple’s right of self-determination’ under article 1 of ICCPR read alone and in conjunction with article 27.33 The Committee further recommended Finland review existing legislation, policies and practices regulating activities that may have an impact on the rights and interests of the Sami people, includ­ ing development projects and extractive industries operations, with a view to ensuring, in practice, meaningful consultation with the Sami people to obtain their free, prior and informed consent.34 These observations clearly suggest that the HRC recognizes the Sami indigenous peoples of the Nordic States as ‘peoples’ capable of exercising the right to economic self-determination under Article 1 of the ICCPR. The HRC holds a similar view with respect to the right to economic self­ determination for the indigenous peoples of the American continent. In its 1999 Concluding Observation on Canada, the HRC explicitly recognized the particular importance of the right to economic self-determination for abo­ riginal peoples. The HRC emphasized that the right to self-determination of aboriginal peoples ‘requires, inter alia, that they must be able to freely dis­ pose of their natural wealth and resources and that they may not be deprived

Ibid.

HRC, Concluding Observation: Sweden, UN Doc CCPR/C/SWE/CO/7 (2016), [38 & 39].

HRC, Concluding Observation: Finland, UN Doc CCPR/CO/82/FIN (2004), [17].

Ibid.; and HRC, Concluding Observation: Finland, UN Doc CCPR/C/FIN/CO/6 (2013),

[16]. 33 HRC, Concluding Observation: Finland, UN Doc CCPR/C/FIN/CO/7 (2021), [42 & 43(a)]. 34 Ibid.,[43(b)]. 29 30 31 32

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of their own means of subsistence (art.1, para. 2)’.35 It further underlined that ‘without a greater share of lands and resources, institutions of aboriginal self­ government will fail’.36 The HRC then recommended that Canada’s ‘practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article 1 of the Covenant’.37 The Committee entertained a similar view in its 200638 and 201539 concluding observations on Canada. Likewise, in its 2006 Concluding Observation on the USA, the HRC required the State party to take further steps to secure the rights of all indigenous peoples, under articles 1 and 27 of the Covenant, so as to give them greater influence in decision-making affecting their natural environment and their means of subsistence as well as their own culture.40 In its 2010 and 2019 Concluding Observations, the HRC recommended that Mexico take all necessary measures to ensure the effective engagement of indigenous peoples in the decision-making of all matters affecting their natural resources ‘in accordance with article 1, paragraph 2, and article 27 of the Covenant’.41 On the South American continent, the HRC recommended that Chile ‘make every possible effort to ensure that its negotiations with indigenous communities lead to a solution that respects the land rights of these com­ munities in accordance with article 1, paragraph 2, and article 27 of the Covenant’.42 With respect to other South American States, the HRC has not directly addressed indigenous peoples’ rights to economic self-determination by invoking Article 1, but rather in terms of their right to the material basis of culture under Article 27.43

HRC, Concluding Observation: Canada, UN Doc CCPR/C/79/Add.105 (1999), [8].

Ibid.

Ibid.

HRC, Concluding Observation: Canada, UN Doc CCPR/C/CAN/CO/5 (2006), [8 & 9].

HRC, Concluding Observation: Canada, UN Doc CCPR/C/CAN/CO/6 (2015), [16].

HRC, Concluding Observation: United States of America, UN Doc CCPR/C/USA/CO/3/

Rev.1 (2006), [37] (emphasis added). 41 HRC, Concluding Observation: Mexico, UN Doc CCPR/C/MEX/CO/5 (2010), [22]. See also HRC, Concluding Observation: Mexico, UN Doc CCPR/C/MEX/CO/6 (2019), [44 & 45]. 42 HRC, Concluding Observation: Chile, UN Doc CCPR/C/CHL/CO/5 (2007), [19]. 43 See, for example: HRC, Concluding Observation: Nicaragua, UN Doc CCPR/C/NIC/CO/4 (2022), [41 & 42]; HRC, Concluding Observation: Nicaragua, UN Doc CCPR/C/NIC/CO/3 (2008), [21]; HRC, Concluding Observation: Peru, UN Doc CCPR/C/PER/CO/5 (2013), [24]; HRC, Concluding Observation: Belize, UN Doc CCPR/C/BLZ/CO/1/Add.1 (2018), [45  & 46]; HRC, Concluding Observation: Belize, UN Doc CCPR/C/BLZ/CO/1 (2013), [25]; HRC, Concluding Observation: Paraguay, UN Doc CCPR/C/PRY/CO/4 (2019), [44 & 35 36 37 38 39 40

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The HRC has also invoked Article 1(2) in embracing the right to eco­ nomic self-determination for the aboriginal peoples of Australia. In its 2000 Concluding Observations, the Committee criticized Australia for not tak­ ing sufficient action to protect indigenous peoples’ right to economic self­ determination and called upon Australia to ‘take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources (art. 1, para. 2)’.44 There­ fore, even though the HRC has been reluctant, for jurisdictional reasons, to accept individual communications on indigenous peoples’ right to economic self-determination under the Optional Protocol to the ICCPR, the HRC clearly endorses this right by invoking Article 1(2) in its concluding observa­ tions in several State reports. The Committee on Economic, Social and Cultural Rights (CESCR) has also evolutively interpreted the right to economic self-determination incor­ porated under Article 1(2) of the ICESCR to embrace indigenous peoples. In its 2022 General Comment No. 26 on land, the CESCR expressly held that ‘land is closely linked to the right to self-determination enshrined in article 1’, emphasizing that ‘Indigenous Peoples can freely pursue their politi­ cal, economic, social and cultural development and dispose of their natural wealth and resources for their own ends only if they have land or territory in which they can exercise their self-determination’.45 Thus, according to the CESCR, the right to self-determination requires that ‘the collective ownership of lands, territories and resources of Indigenous Peoples shall be respected, which implies that these lands and territories shall be demarcated and pro­ tected by States parties’.46 The concluding observations of the CESCR further strengthen this understanding. Affirming that the Sami people are holders of the right to economic self-determination under Article 1, the CESCR urged Finland to ‘strengthen its efforts to adopt the necessary legislative and administrative measures to fully and effectively guarantee the Sami people’s right to own their land and to freely dispose of their natural wealth and resources’.47 In its 2015 Concluding Observation on Paraguay, the Commit­ tee expressed its concern that ‘the State party has not yet legally recognized

44

45 46 47

45]; HRC, Concluding Observation: Paraguay, UN Doc CCPR/C/PRY/CO/3 (2013), [27]; HRC, Concluding Observation: Suriname, UN Doc CCPR/C/SUR/CO/3 (2015), [47 & 48]. HRC, Concluding Observation: Australia, UN Doc A/55/40, Vol I (2000), [506  & 507]. See also HRC, Concluding Observation: Australia, UN Doc CCPR/C/AUS/CO/6 (2017), [49–53]. CESCR, General Comment No. 26 (2022) on land and economic, social, and cultural rights, UN Doc E/c.12/GC/26 (January 2023), [11]. Ibid., [11]. CESCR, Concluding Observation: Finland, UN Doc E/C.12/FIN/CO/6 (2014), [9(a)] (emphasis added). The CESCR reiterated its concerns and recommendations in its 2021 concluding observation, see CESCR, Concluding Observation: Finland, UN Doc E/C.12/ FIN/CO/7 (2021), [50 & 51].

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the right of indigenous peoples to dispose freely of their natural wealth and resources or put in place an effective mechanism to enable them to claim their ancestral lands (art. 1)’.48 The Committee then urged Paraguay to adopt appropriate measures to allow indigenous peoples to ‘exercise their right to dispose freely of their lands, territories and natural resources’.49 Similarly, in its 2015 Concluding Observation on Chile, the CESCR criticized Chile for ‘the limited protection of the right of indigenous peoples to dispose freely of their wealth and natural resources and of their ancestral lands (art. 1)’.50 The Committee required that Chile ‘increase its efforts to guarantee the right of indigenous peoples to dispose freely of their lands, territories and natural resources, by such means as providing legal recognition and the necessary legal protection’.51 The CESCR similarly invoked Article 1 in its Concluding Observations on Russia,52 the Philippines,53 Sweden,54 Cambodia,55 Brazil,56 Colombia,57 Nicaragua,58 Ecuador,59 Mexico,60 Australia,61 and New Zea­ land.62 Hence, even though the complaint procedure under the Optional Pro­ tocol to ICESCR has yet to produce concrete jurisprudence, the CESCR has affirmed the right to economic self-determination for indigenous peoples in its practice of monitoring the reports of States. Relatively recent case law from the African human rights system has also confirmed that indigenous peoples are holders of the right to economic self­ determination, as incorporated under Article 21 of the African Charter. In Ogoni v Nigeria, even though it did not explicitly state that the Ogoni com­ munities are indigenous peoples, the African Commission on Human and Peoples’ Rights (AfComHPR) held that the right to natural resources found within the Ogoni’s traditional lands is vested in the Ogoni people, pursuant

48 49 50 51 52 53 54 55 56 57 58 59 60 61 62

CESCR, Concluding Observation: Paraguay, UN Doc E/C.12/PRY/CO/4 (2015), [6].

Ibid., [6(b)].

CESCR, Concluding Observation: Chile, UN Doc E/C.12/CHL/CO/4 (2015), [8].

Ibid., [8(c)].

CESCR, Concluding Observation: Russia, UN Doc E/C.12/RUS/CO/6 (2017), [14 & 15];

and CESCR, Concluding Observation: Russia, UN Doc E/C.12/1/Add.94 (2003), [11]. CESCR, Concluding Observation: Philippines, UN Doc E/C.12/PHL/CO/4 (2008), [16]; and CESCR, Concluding Observation: Philippines, UN Doc E/C.12/PHL/CO/5–6 (2016), [13 & 14]. CESCR, Concluding Observation: Sweden, UN Doc E/C.12/SWE/CO/6 (2016), [13 & 14]; and CESCR, Concluding Observation: Sweden, UN Doc E/C.12/SWE/CO/5 (2008), [15]. CESCR, Concluding Observation: Cambodia, UN Doc E/C.12/KHM/CO/1 (2009), [15 & 16]. CESCR, Concluding Observation: Brazil, UN Doc E/C.12/BRA/CO/2 (2009), [9]. CESCR, Concluding Observation: Colombia, UN Doc E/C.12/COL/CO/5 (2010), [9 & 10]; CESCR, Concluding Observation: Colombia, UN Doc E/C.12/COL/CO/6 (2017), [17 & 18]. CESCR, Concluding Observation: Nicaragua, UN Doc E/C.12/NIC/CO/5 (2021), [11 & 12]. CESCR, Concluding Observation: Ecuador, UN Doc E/C.12/ECU/CO/4 (2019), [15–18]. CESCR, Concluding Observation: Mexico, UN Doc E/C.12/MEX/CO/5–6 (2018), [12 & 13]. CESCR, Concluding Observation: Australia, UN Doc E/C.12/AUS/CO/5 (2017), [15 & 16]. CESCR, Concluding Observation: New Zealand, UN Doc E/C.12/NZL/CO/3 (2012), [11]; CESCR, Concluding Observation: New Zealand, UN Doc E/C.12/NZL/CO/4 (2018), [8 & 9].

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to Article 21 of the African Charter.63 In the case of Endorois v Kenya,64 the AfComHPR similarly concluded that ‘the Endorois have the right to freely dispose of their wealth and natural resources in consultation with the respondent State [Kenya]’.65 Likewise, in the case of African Commission on Human and Peoples’ Rights v Kenya,66 concerning the eviction of the hunter­ gatherer Ogiek indigenous peoples from their traditional lands (Mau Forest), the African Court on Human and Peoples Rights (ACtHPR) found that Kenya violated the Ogiek indigenous peoples’ right to economic self-determination. The Court held that, by evicting the communities from their ancestral lands, Kenya ‘violated article 21 of the Charter since the Ogieks have been deprived of the right to enjoy and freely dispose of the abundance of food produced by their ancestral lands’.67 These recent decisions provide additional evidence of the trend toward recognizing the application of the right to economic self­ determination for indigenous peoples by regional human rights bodies. Although not exhaustive, the previous review indicates that global and regional human rights bodies have increasingly accepted indigenous peoples as ‘peoples’ entitled to exercise the right to self-determination, including its economic dimension, by interpreting the relevant provisions contained in their respective instruments in an evolutionary manner. They have adapted the general right of economic self-determination to the specific situations of indigenous peoples and have embraced it in contemporary developments in international law pertaining to indigenous peoples. In so doing, they affirm the view that the right to self-determination is evolutive and capable of accommodating different subjects according to the contemporary needs of the international community and developments in international law. None­ theless, neither the relevant human rights instruments nor the practice of their respective treaty monitoring bodies prescribes any specific model for the implementation of the right of indigenous peoples to self-determination. This gives States, in consultation with the indigenous peoples concerned, the

63 Social and Economic Action Rights Centre (SERAC) v Nigeria (Ogoni Case), ACHPR [2001], Communication No 155/96 (27 October 2001), [55–58]. It is important to empha­ size that the AfComHPR clearly described the Ogoni as a ‘people’. See generally, F Coomans, ‘The Ogoni Case Before the African Commission on Human and Peoples Rights’ (2003) 52 International and Comparative Law Quarterly 749. 64 Center for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (Endorois Case), ACHPR [2009], Commu­ nication No 276/2003 (25 November 2009). This case concerns the forced eviction of the pastoralist indigenous communities of Endorois from their traditional lands surrounding the Lake Bogoria area due to Kenya’s creation of a game reserve, and a subsequent granting of concessions for ruby mining. 65 Ibid., [268] (emphasis added). 66 African Commission on Human and Peoples’ Rights v Republic of Kenya (the Ogiek Case), ACtHPR (Judgement) [2017], Application No 006/2012 (26 May 2017). 67 Ibid., [201 & 227].

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flexibility to choose the proper means, which fit the specific circumstances, to operationalize the right to self-determination. 3. The right to cultural integrity There is no single and universally accepted definition for ‘culture’, though various definitions have been proposed internationally.68 The independent expert in the field of cultural rights notes that defining the term culture ‘is not necessary, and may be inappropriate’ for it may limit its dynamism and evolutionary character.69 Yet, the following definition of culture reflects the core elements of indigenous peoples’ culture: Culture is the sum total of the material and spiritual activities and products of a given social group which distinguishes it from other similar groups. [It is] a coherent self-contained system of values, and symbols as well as a set of practices that a specific cultural group reproduces over time, and which provides individuals with the required signposts and meanings for behavior and social relationships in everyday life.70 Indigenous peoples’ culture has multi-faceted features and manifests itself, inter alia, in terms of their language, spiritual practice, customs and rituals, the use of sacred sites, traditional lands and resources, and other traditional activities.71 Protection of indigenous peoples’ cultural integrity thus requires recognition and protection of all these aspects of culture. The recognition and protection of indigenous peoples’ right to culture is derived from the general global and regional human rights instruments, as well as human rights instruments specific to indigenous peoples. Article 15(1) of the ICESCR recognizes the right of ‘everyone to take part in the cultural life of the [community]’.72 Article 27 of the ICCPR also provides that ‘persons belonging

68 See for example CESCR, General Comment No 21: Right of Everyone to Take Part in Cul­ tural Life (art 15, para 1(a) of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/GC/21 (21 December 2009), [10]. 69 ‘Report of the Independent Expert in the Field of Cultural Rights’, Farida Shaheed, submit­ ted pursuant to Resolution 10/23 of the Human Rights Council, UN Doc A/HRC/14/36 (22 March 2010), [5]. 70 R Stavenhagen, ‘Cultural Rights: A  Social Science Perspective’ in A  Eide, C Krause, and A  Rosas (eds), Economic, Social and Cultural Rights: A  Textbook, 2nd edn (Martinus Nijhoff 2001) 85, 89 (emphasis in the original). 71 Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), ‘Promotion and Protec­ tion of the Rights of Indigenous Peoples with Respect to their Cultural Heritage’, UN Doc A/HRC/EMRIP/2015/2 (11 May 2015), [53–57]; EMRIP, ‘Role of Language and Culture in the Promotion and Protection of the Rights and Identity of Indigenous Peoples’, UN Doc A/ HRC/21/53 (16 August 2012), [52]. 72 ICESCR (n 3), Art 15(1)(a).

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to . . . minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language’.73 The Convention on the Elimination of Racial Discrimination (CERD Convention) similarly recognizes the right of everyone ‘to equal participation in cultural activities’, affirming that all cultures deserve equal recognition and protection, for they have equal value and no culture is superior to another.74 Of the general regional human rights instruments,75 the ACHPR imposes obligations on State parties not only to recognize the right of ‘every individual [to] freely take part in the cultural life of his community’ but also to take measures to promote and protect the ‘morals and traditional values recognized by the community’ at large.76 None of the previously mentioned provisions expressly references indig­ enous peoples. Yet, all of these provisions have been evolutively interpreted and applied by their respective treaty monitoring bodies and regional human rights courts and commissions to recognize and protect the cultures of indig­ enous peoples.77 Similarly, although the ACHR does not contain a provi­ sion on the right to culture, both the Inter-American Court and Commission of Human Rights have protected the right to culture of indigenous peoples in connection with other rights, most importantly the right to property enshrined under Article 21 of the ACHR (see what follows for details).78 There also exists a significant body of literature that explores the applica­ tion of the cultural rights provisions of general human rights instruments to indigenous peoples.79 73 ICCPR (n 3), Art 27 (emphasis added). The right to culture of minorities has been further elaborated on by the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UNGA Res 47/135, UN Doc A/47/49 (1993). 74 International Convention on the Elimination of All forms of Racial Discrimination (CERD Convention), concluded at New York on 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969), Art 5(e)(vi). 75 The American Convention on Human Rights (ACHR) and the ECHR (n 4) do not contain express provision that recognize the right to culture. 76 ACHPR (n 5), Arts 17(2) & (3). Article 8 concerning the right to practice one’s religion is also connected to culture. 77 See, for example, HRC, General Comment No 23(50), UN Doc CCPR/C/21/Rev.1/Add.5 (1994); CESCR, General Comment No 21 (n 68); CERD Committee, General Recommen­ dation No 23: Indigenous Peoples (Fifty-first session, 1997); AfComHPR, Endorois Case (n 64), [239–251]; and ACtHPR, Ogiek Case (n 66), [176–190]. 78 The European Court of Human Rights (ECtHR) has not been as proactive as the Inter-Amer­ ican Court of Human Rights (IACtHR) in recognizing indigenous peoples’ right to cultural integrity. Rather than proactively protecting the rights of indigenous peoples by adopting an evolutionary interpretation of the relevant provisions of the ECHR (like its counterpart in the American and African regions), the ECtHR declared cases brought before it by indigenous individuals and communities as inadmissible. For a detailed discussion, see B Saul, Indigenous Peoples and Human Rights: International and Regional Jurisprudence (Hart 2016) 200–202. 79 See, for example, J Anaya, ‘International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State’ (2004) 21(1) Arizona Journal of International and

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The human rights instruments specific to indigenous peoples provide extensive reference to the protection of the cultures, traditions, and world­ views of indigenous peoples. For example, ILO Convention 169 imposes an obligation on States to take measures for ‘promoting the full realiza­ tion of the . . . cultural rights of [indigenous] peoples with respect for their social and cultural identity, their customs and traditions and their institu­ tions’.80 Article 5(a) requires further that State parties recognize and pro­ tect, including by taking special measures, the ‘social, cultural, religious and spiritual values and practices’ of indigenous peoples with due regard to the nature of the problems they face ‘both as groups and as individuals’.81 The UNDRIP similarly recognizes the right to culture of indigenous peoples in all its manifestations, including the ‘right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions’.82 The UNDRIP also recognizes specific aspects of the right to cultural identity, including the prohibition of forced assimilation (Article 8), the right to revitalize cultural traditions and customs (Article 11), and the right to manifest, practice, develop, and teach spiritual and reli­ gious traditions, customs and ceremonies, including a right to have access to religious and cultural sites (Article 12).83 Likewise, the ADRIP stipulates that indigenous peoples of the American region have ‘the right to their own cultural identity and integrity and to their cultural heritage’ as well as the ‘right to the recognition and respect for all their ways of life, world views, spirituality, uses and customs, norms and traditions’.84 It is evident that these indigenous-specific instruments protect a broad understanding of the right to culture. In short, a multitude of international legal sources exist to protect the right to cultural integrity of indigenous peoples. This encompasses not only the general and indigenous-specific human rights instruments but also the robust jurisprudence emerging from the UN treaty monitoring bodies and regional human rights institutions. All these legal sources recognize and pro­ tect indigenous peoples’ right to culture with its multidimensional aspects and manifestations. One of the manifestations of indigenous peoples’ culture is its collective dimension, discussed in the following section.

80

81 82 83 84

Comparative Law 13; E Stamatopoulou, ‘Monitoring Cultural Human Rights: The Claims of Culture on Human Rights and the Response of Cultural Rights’ (2012) 34 Human Rights Quarterly 1170; A Xanthaki, Indigenous Rights and the United Nations Standards (n 18). Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Con­ vention 169), concluded at Geneva on 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991), Art 2(2)(b). See ibid., Arts 4(2), 13 & 23. UNDRIP (n 21), Art 31. See also ibid., Arts 13, 15 & 34. ADRIP (n 21), Art 13, as well as Arts 6, 10, 23, 28 & 31(1).

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3.1 The collective dimension of indigenous peoples’ culture The cultures of indigenous peoples can only be properly enjoyed collectively. Åhrén observes that the culture of indigenous peoples loses ‘all relevance if disconnected from the community as such’.85 Anaya similarly argues: ‘Given that [indigenous] culture is a product of, and is manifested through group dynamics, the enjoyment of rights connected with culture is mostly meaning­ ful in a group context’.86 Thus, the protection of the cultural rights of indig­ enous peoples targets not only the cultures of individual members but also of the indigenous communities or groups as collectives.87 ILO Convention 169, the UNDRIP, and the ADRIP are clear in their recognition of indigenous peo­ ples’ collective cultural rights.88 Indeed, one of the salient features of these indigenous-specific instruments is the fact that they have contextualized the right to culture within the reality of indigenous peoples by collectivizing it.89 Unlike the indigenous-specific human rights instruments, the cultural rights provisions of the general human rights instruments do not have a col­ lective orientation. Those provisions are literally understood to apply only to individuals rather than to groups. However, the cultural rights provisions of general human rights instruments have been interpreted and applied in a manner that offers protection to the cultural rights of indigenous peoples as collectives. In its General Comment No. 23, the HRC observes that the protection of the right to culture under Article 27 is ‘directed to ensure the survival and continued development of the cultural . . . identity of the minori­ ties concerned, thus enriching the fabric of society as a whole’.90 The HRC has also recognized the collective right to culture of indigenous peoples in several cases. The HRC’s views in Lovelace v Canada91 were the first such case. Sandra Lovelace, an indigenous woman from the Maliseet Indian tribe, lost her Indian status and was consequently denied the right to live on an Indian reserve (land allotted to the exclusive use of the Indians) due to her marriage with a non-Indian man – a rule enshrined in the Indian Act (this rule continued to apply even after her divorce).92 Since the Indian Act did not revoke Indian status and the right to live on a reserve from an Indian man 85 86 87 88 89

90 91 92

M Åhrén, Indigenous Peoples’ Status (n 25), 91.

J Anaya, International Human Rights and Indigenous Peoples (n 79), 22.

See D Sanders, ‘Collective Rights’ (1991) 13(3) Human Rights Quarterly 368.

See for example, ILO Convention 169 (n 80), Art 13(1); UNDRIP (n 21), Art 1; and ADRIP

(n 21), Arts 1(2), 6, 13 & 16. For a general discussion on the collectivization of indigenous rights in the context of the UNDRIP, see M Scheinin and M Åhrén, ‘Relationship to Human Rights, and Related Inter­ national Instruments’ in J Hohmann and M Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (OUP 2018) 63–86. HRC, General Comment No 23 (n 77), [9] (emphasis added). HRC, Sandra Lovelace v Canada, Communication No R.6/24, UN Doc Supp. No 40 (A/36/40) at 166 (30 July 1981). Ibid., [1].

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who marries a non-Indian woman, Lovelace complained that the Act was discriminatory and contrary to Articles 2(1), 3 and 26 of the ICCPR; and that this led to the violation of her right to enjoy her culture under Article 27.93 The State party, on the other hand, maintained that the restrictive measure of the Indian Act was adopted to preserve the identity of the Indian tribe and thus to ensure their collective right to enjoy their culture.94 The HRC emphasized that Lovelace could only enjoy her native culture and language in the community with other members of her group if she could live on the reserve because there is no place outside the reserve where such a community exists.95 The HRC held further that restrictions on the right to culture of individuals belonging to a minority ‘must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant, read as a whole’.96 Ruling in favor of Lovelace, the HRC con­ cluded that ‘it [did] not seem to the Committee that to deny Sandra Lovelace the right to reside on the reserve is reasonable, or necessary to preserve the identity of the tribe’, particularly given ‘the fact that her marriage to a nonIndian has broken up’.97 Despite its conclusion in favor of individual rights in this particular case, the HRC upheld the general view that individual rights could be restricted to protect and preserve the collective cultural identity of an indigenous community as a group so long as doing so is reasonable and justifiable.98 The position of the HRC in recognizing the collective aspect of the right to culture under Article 27 was even clearer in the case of Kitok v Sweden.99 In this case, Mr. Kitok, a Swedish Sami, had lost full membership in his Sami village and was denied his reindeer herding rights because he did not con­ duct reindeer husbandry as his full-time job for three years due to financial reasons. The denial of the right arose from the Reindeer Husbandry Act of 1971, which restricted the right to engage in reindeer herding activities to those Sami who were members of a Sami village (i.e., sameby, which is a legal entity under Swedish law), and who engaged in reindeer herding as their main occupation.100 According to the Act, if a Sami engages in any other profession for a period of three years, he/she will lose his/her status and can­ not re-enter reindeer husbandry unless by special permission.101 Kitok alleged that the Swedish legislation was in violation of the right to enjoy his culture Ibid. Ibid., [5 & 9.4]. Ibid., [15]. Ibid., [16]. Ibid., [17]. See B Saul, Indigenous Peoples and Human Rights (n 78), 64. HRC, Ivan Kitok v Sweden, Communication No 197/1985, UN Doc CCPR/ C/33/D/197/1985 (27 July 1988). 100 Ibid., [2.1]. 101 Ibid., [2.2 & 4.2]. 93 94 95 96 97 98 99

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as a Sami. The State party, on the other hand, submitted that the measures under the Reindeer Husbandry Act are aimed at ‘preserving the Sami culture and reindeer husbandry’ by restricting the number of reindeer breeders and, therefore, protecting the general interest of the Sami community at large.102 Re-affirming its finding in Lovelace, the HRC held that ‘a restriction upon the rights of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole’.103 The Committee empha­ sized that the protection of the collective cultural integrity of an indigenous community as a whole serves as a benchmark to measure potential restric­ tions to individual rights. The HRC held that the protection of the collective cultural rights of the Sami community takes precedence over the rights of Kitok as an individual. Accordingly, the HRC found no violation of Kitok’s right to culture under Article 27.104 The HRC reiterated that Article 27 of the ICCPR protects the cultural identity of indigenous communities and groups as collectives in the subsequent cases of Ominayak, Ilmari Länsman, and Apirana Mahuika.105 The CESCR has followed the HRC’s approach in recognizing the collec­ tive dimension of indigenous peoples’ right to culture. In its interpretation of Article 15 of the ICESCR, the CESCR has concluded that indigenous peo­ ples’ culture is ‘strongly communal’ or ‘can only be expressed and enjoyed as a community’.106 The CESCR has further stressed that this ‘strong communal dimension of indigenous peoples’ cultural life is indispensable to their exist­ ence, well-being and full development’.107 The CERD Committee adopted similar interpretations.108 Article 17 of the ACHPR has also been interpreted to have ‘a dual dimension, in both its individual and collective nature’, protect­ ing, on the one hand, an individual’s participation in the cultural life of their community and, on the other hand, ‘obliging the State to promote and protect traditional values recognized by a community’.109 In short, interpretations

102 103 104 105

106 107 108 109

HRC, Ivan Kitok (n 99), [4.3].

Ibid., [9.8] (emphasis added).

Ibid., [9.8].

HRC, Ominayak v Canada, Communication No 167/1984, UN Doc CCPR/C/38/D/167/

1984 (26 March  1990); HRC, Ilmari Länsman et al v Finland, Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992 (26 October 1994); HRC, Apirana Mahuika et al v New Zealand, Communication No 547/1993, UN Doc CCPR/C/70/D/547/1993 (27 October 2000). In these cases, the HRC held that there is no objection to a group of indi­ viduals, who claim to be similarly affected, to collectively submit a communication about alleged breaches of their rights. CESCR, General Comment 21 (n 68), [36]; and CESCR, General Comment No. 26 on land (n 45), [17]. Ibid., [36 & 37]. CERD Committee, General Recommendation No 23 (n 77), [4(e)]. AfComHPR, Endorois Case (n 64), [241]; ACtHPR, Ogiek Case (n 66), [177].

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by human rights bodies currently show a clear shift from an individual right to culture towards the protection of the collective right to culture of indig­ enous communities. In sum, the collective cultural integrity of indigenous peoples has been widely recognized under indigenous-specific human rights instruments and the practice of human rights bodies. States, in their reports and litigation in indi­ vidual communications, have also rarely denied the collective aspect of indig­ enous peoples’ right to culture. Commentators have observed that the absence of objection by States to the collective aspect of the right to culture affirms their tacit acceptance and this, in turn, constitutes subsequent practice within the meaning of Article 31(3)(b) of the Vienna Convention on the Law of Treaties (VCLT).110 The other important manifestation of indigenous peoples’ culture relates to its material content (i.e., the right to lands and natural resources). 3.2 The material basis of culture The traditional lands and natural resources of indigenous peoples are not only a means of economic subsistence for indigenous peoples but are also cru­ cial to the survival of their culture, religions, customary practices, and their very existence as distinct peoples.111 As a result, the recognition of indigenous peoples’ right to culture has been understood to include its material founda­ tion, namely the right to traditional lands and associated natural resources. The human rights instruments specific to indigenous peoples are explicit in their recognition of the material content of the right to culture. In several of its provisions, ILO Convention 169 expressly recognizes the special connec­ tion of indigenous peoples with their lands, territories, and natural resources and the importance of this connection for the survival and development of their culture. Particularly, Article 13(1) obligates States, in applying the pro­ visions related to lands and territories, to respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.112 Building on this provision, the UNDRIP acknowledges that control by indigenous peoples of their lands, territories, and resources ‘will enable them 110 M Åhrén, Indigenous Peoples’ Status (n 25), 92; B Saul, Indigenous Peoples and Human Rights (n 78), 64–66. 111 J Anaya and RA Williams, ‘The Protection of Indigenous Peoples’ Rights Over Land and Natural Resources Under the Inter-American Human Rights System’ (2001) 14 Harvard Human Rights Journal 33, 49. 112 ILO Convention 169 (n 80), Art 13(1) (emphasis added).

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to maintain and strengthen their . . . cultures and traditions’.113 As a result, UNDRIP requires that States recognize indigenous peoples’ right ‘to main­ tain and strengthen their distinctive spiritual [and cultural] relationship’ with those lands and territories.114 The UN treaty monitoring bodies and regional human rights courts have also played a significant role in articulating the material content of indig­ enous peoples’ culture through their dynamic interpretation of the relevant cultural rights provisions. The HRC has offered a broad interpretation of culture as used in Article 27 of the ICCPR in its General Comment No. 23: [C]ulture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indig­ enous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law.115 The HRC has applied this understanding of culture in several cases dealing with indigenous communities under Article 27. In Daniel Billy et al. v. Aus­ tralia, the HRC held that ‘article 27 of the Covenant, interpreted in the light of the [UNDRIP], enshrines the inalienable right of indigenous peoples to enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity’.116 In Ominayak v. Canada, the HRC concluded that ‘the rights protected by article 27 include the right of persons, in community with others, to engage in economic and social activi­ ties which are part of the culture of the community to which they belong’.117 Accordingly, the HRC found that gas and oil exploration and exploitation activities in the traditional territory of the indigenous Lubicon Lake Band constituted a violation of Article 27 of the ICCPR because those activities threatened the way of life and culture of the Band by destroying the commu­ nity’s traditional hunting and fishing grounds.118 In Kitok v. Sweden119 and the three Länsman cases against Finland,120 the HRC affirmed that reindeer

113 114 115 116

117 118 119 120

UNDRIP (n 21), preamble, recital 9.

Ibid., Art 25. Art 25(1) of ADRIP is identical to Art 25 of UNDRIP.

HRC, General Comment No 23 (n 77), [7] (emphasis added).

HRC, Daniel Billy et al v Australia, Communication No. 3624/2019, UN Doc CCPR/

C/135/D/3624/2016 (22 September 2022), [8.13]. This case concerns the allegation of Tor­ res Strait Islanders that their right to culture has been violated due to the failure of Australia to take measures to mitigate and adapt the impacts of climate change. The HRC found a violation of the right to culture of the Islanders under Article 27 of the ICCPR, [8.14]. HRC, Ominayak (n 105), [32.2] (emphasis added).

Ibid., [33].

HRC, Ivan Kitok (n 99), [9.2].

HRC, Ilmari Länsman (n 105), [9.2]; HRC, Jouni E Länsman et al v Finland, Com­ munication No 671/1995, UN Doc CCPR/C/58/D/671/1995 (30 October  1996), [10.2]; HRC, Jouni Länsman et al v Finland, Communication No 1023/2001, UN Doc

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The rights of indigenous peoples to natural resources

husbandry forms an integral part of the Sami people’s culture. The HRC has also acknowledged that raising llamas and alpacas was an essential element of the cultures of the Aymara indigenous peoples of Peru.121 It is important to note that all these conclusions of the HRC draw a clear distinction between activities of a purely economic nature and activities that form an integral part of the cultures of indigenous communities, emphasizing that only the latter falls under the protection of Article 27 of the ICCPR.122 The CESCR has followed a similar approach in its interpretation of Article 15(1)(a) of the ICESCR. The Committee has affirmed that ‘the strong commu­ nal dimension of indigenous peoples’ cultural life . . . includes the right to the lands, territories and resources which they have traditionally owned, occu­ pied or otherwise used or acquired’.123 This is mainly because ‘land serves as a basis for social, cultural and religious practices or the expression of cultural identity [of indigenous peoples]’.124 The Committee further observes that ‘the spiritual relationship of indigenous peoples to land is linked not only to spir­ itual ceremonies but also to every activity on land, such as hunting, fishing, herding, and gathering plants, medicines, and foods’.125 The CESCR specifi­ cally addresses the issue of forced removal of indigenous peoples, observing that ‘instances of forced eviction are prima facie incompatible with the [right to culture] and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law’.126 Thus, the CESCR emphasized that States should recognize and protect the rights of indigenous peoples to their ancestral lands and their relationship with nature ‘in order to prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity’.127

121 122

123 124 125 126 127

CCPR/C/83/D/1023/2001 (17 March 2005), [10.1]. It is worth noting here that the HRC, in all three of these cases, found no violation of the right to culture of the Sami people under Article 27. HRC, Ángela Poma Poma v Peru, Communication No 1457/ 2006, UN Doc CCPR/ C/95/D/1457/2006 (27 March 2009), [7.2 & 7.3]. The HRC’s observation in Diergaardt v. Namibia makes this distinction clearer. There, the HRC observed that the Basters’ economic activity of cattle raising, although under­ taken since 125  years ago, was not an essential element of their culture to be covered by the protection of Article 27. See HRC, JGA Diergaardt (Late Captain of the Reho­ both Baster Community) et al v Namibia, Communication No 760/1997, UN Doc CCPR/ C/69/D/760/1997 (25 July 2000), [10.6]. CESCR, General Comment No 21 (n 68), [36].

CESCR, General Comment No. 26 (2022) on land (n 45), [10].

Ibid., [16].

CESCR, General Comment No 4: The Right to Adequate Housing, UN Doc E/1992/23 (13

December 1991), Annex III, [114]. CESCR, General Comment 21 (n 68), [36] (emphasis added). See also J Gilbert, ‘Custodi­ ans of the Land: Indigenous Peoples, Human Rights and Cultural Integrity’ in M Langfield,

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The Inter-American and African human rights courts and commissions have also affirmed the critical importance of ancestral lands and tradition­ ally used natural resources for the cultural survival of indigenous commu­ nities. Since the ACHR does not contain a provision on the right to culture, the Inter-American Court of Human Rights (IACtHR) has frequently rec­ ognized indigenous peoples’ cultural identity as an integral part of the right to property recognized under Article 21 of the ACHR. In the seminal case of Awas Tingni Community v Nicaragua, the IACtHR held that ‘the close ties of indigenous peoples with the lands must be recognized and under­ stood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival’.128 The Court underlined that, for indigenous communities, ‘relations to the lands are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy . . . to preserve their cultural legacy and transmit it to future generations’.129 In the subsequent three cases brought against Para­ guay130 and in the case of Saramaka People v Suriname,131 the IACtHR held in similar terms that the cultural survival of indigenous peoples ‘depends on their access and use of the natural resources in their territory that are related to their culture and are found therein’.132 In 2012, in Kichwa Indigenous Peoples of Sarayaku v Ecuador, the IACtHR provided a more detailed interpretation of the link between the right to communal lands of the Sarayaku indigenous communities and their right to cultural identi­ ty.133 The Court specifically found that the oil exploration and exploitation activities in the traditional lands of the Sarayaku people led to the destruc­ tion of sites of special cultural and spiritual value and the suspension of ancestral events and spiritual ceremonies.134 In reaching its conclusion, the Court emphasized that this ‘had an impact on teaching children and young W Logan, and NM Craith (eds), Cultural Diversity, Heritage and Human Rights: Intersec­ tions in Theory and Practice (Routledge 2010) 31–44. 128 Mayagna (Sumo) Awas Tingni Community v Nicaragua, IACtHR (Merits, Reparations and Costs) [2001], Case No 79 (31 August 2001), [149] (emphasis added). 129 Ibid., [149] (emphasis added). For similar conclusions, see also Moiwana Community v Suriname, IACtHR (Preliminary Objections, Merits, Reparations and Costs) [2005], Case No 124 (15 June 2005), [86(6) & 131]. 130 Yakye Axa Indigenous Communities v Paraguay, IACtHR (Merits, Reparations and Costs) [2005], Case No 125 (17 June 2005), [137]; Sawhoyamaxa Indigenous Community v Para­ guay, IACtHR (Merits, Reparations and Costs) [2006], Case No 146 (29 March 2006), [118, 120 & 121]; and Xákmok Kásek Indigenous Community v Paraguay, IACtHR (Mer­ its, Reparations and Costs) [2010], Case No 214 (24 August 2010), [174 & 175–182]. 131 Saramaka People v Suriname, IACtHR (Preliminary Objections, Merits, Reparations and Costs) [2007], Case No 172 (28 November 2007), [120, 122 & 128]. 132 Ibid., [120]. 133 Kichwa Indigenous Peoples of Sarayaku v Ecuador, IACtHR (Merits and Reparations) [2012], Case No 245 (27 June 2012), [155, 159 & 212–220]. 134 Ibid., [218].

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people about their traditions and cultural rituals, and on perpetuating the spiritual knowledge of the [elders]’.135 The African human rights bodies have also followed the jurisprudence of the IACtHR in upholding the significance of traditional lands and natu­ ral resources for the maintenance and development of indigenous peoples’ cultural integrity. In Endorois,136 the AfComHPR interpreted culture under Articles 17(2) and (3) of the ACHPR broadly as a ‘complex whole which includes a spiritual and physical association with one’s ancestral land, knowl­ edge, belief . . . , customs, and any other capabilities and habits acquired . . . as a member of a distinct society’.137 The AfComHPR acknowledged that the culture, religion, and traditional way of life of the Endorois are inti­ mately intertwined with their ancestral lands surrounding Lake Bogoria and that without access to those lands, the Endorois are unable to fully exercise their cultural and religious rights, and will be disconnected from their land and ancestors.138 The Commission, then, found Kenya in violation of the cultural rights of the Endorois because its actions ‘denied the community access to an integrated system of beliefs, values, norms, mores, traditions and artifacts closely linked to access to the Lake’.139 The AfComHPR fur­ ther concluded that by evicting the Endorois from their traditional land, denying them access to religious sites, and failing to demarcate and protect those sites within the game reserve, Kenya denied ‘the very essence of the Endorois right to culture . . . rendering the right, to all intents and purposes, illusory’.140 Building on the Commission’s finding in Endorois, the ACtHPR had joined this consensus in Ogiek.141 In short, the discussion of the inter­ connections between indigenous peoples’ culture and its material content has been dominant in the case law of the Inter-American and African human rights systems. In sum, the traditional lands and natural resources of indigenous peo­ ples are intertwined with and significantly contribute to the survival and continued development of the culture of indigenous peoples. Therefore, meaningful recognition and protection of the right to culture of indigenous peoples necessarily presupposes recognition and protection of ancestral lands, 135 Ibid., [218 & 220]. For similar conclusions, see also Kaliña and Lokono Peoples v Suri­ name, IACtHR (Merits, Reparations and Costs) [2015], Case No 309 (25 November 2015), [130]. 136 In this case, the applicants specifically alleged that the eviction disrupted their religious and traditional practices including their prayer sites, places for circumcision rituals, and other ceremonial cultural sites – violating the applicant’s right to culture (AfComHPR, Endorois Case (n 64), [6]). 137 Ibid., [241]. 138 Ibid., [156]. 139 Ibid., [250]. 140 Ibid., [251]. 141 ACtHPR, Ogiek Case (n 66), [179, 182 & 190].

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traditionally used natural resources, as well as other traditional activities. This understanding has received broad acceptance in contemporary interna­ tional human rights law and jurisprudence of human rights institutions. The following section explores the extent of States’ obligations in this respect. 3.3 Scope of States’ obligations relating to the right to culture The extent of the obligation of States to protect the right to culture of indig­ enous peoples has been contentious for some time. For example, the textual interpretation of Article 27 of the ICCPR suggests that State parties are under an obligation ‘to remain neutral’ rather than to ‘actively protect any particu­ lar culture within the State’.142 The negative formulation of the provision (‘shall not be denied’) could be understood as if it did not entail a positive obligation on State parties to protect the cultures of minorities. Nonethe­ less, the HRC interprets the provision differently. In its General Comment No. 23, the HRC states that the ‘enjoyment of those rights [the right to culture, including its material content] may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them’.143 In Poma Poma, the HRC similarly concluded that Peru has an obligation not only to provide an effective remedy and reparation measures that are commensurate with the harm sustained but is also obligated to take the necessary positive measures to ensure that similar violations do not occur in the future.144 Similarly, the CESCR observes that the right to culture under Article 15 of the ICESCR requires that States take positive measures to ‘protect indig­ enous peoples from illegal or unjust exploitation of their lands, territories and resources by State entities or private or transnational enterprises’.145 This positive obligation further requires that States enable indigenous peo­ ples to ‘own, develop, control and use their communal lands, territories and resources’, and, if they have been inhabited or used without their free and informed consent, ‘take steps to return these lands and territories’.146 The AfComHPR is also of the view that protecting cultural rights goes beyond the duty to not destroy or deliberately weaken indigenous groups and ‘requires respect for, and protection of, their religious and cultural heritage essential to their group identity’ by adopting legislative or other measures.147

142 M Åhrén, Indigenous Peoples’ Status (n 25), 90–91.

143 HRC, General Comment No 23 (n 77), [7] (emphasis added).

144 HRC, Poma Poma (n 121), [9]. See also HRC, Ominayak (n 105) [33] for similar

conclusions. 145 CESCR, General Comment No 21 (n 68), [50(c)]. 146 Ibid., [36]; CESCR, General Comment No. 26 on land (n 45), [16]. 147 AfComHPR, Endorois Case (n 64), [241].

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These practices are informed by and resonate well with the provisions of indigenous-specific human rights instruments, which impose express obliga­ tions on States to adopt positive measures to promote and strengthen indig­ enous peoples’ rights to culture. For example, ILO Convention 169 provides more generally that: ‘Governments shall have the responsibility for develop­ ing, with the participation of the [indigenous] peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their [cultural] integrity’.148 To limit States’ margin of appreciation while deciding what constitutes ‘appropriate positive measures’ to protect the material basis of indigenous peoples’ right to culture, Article 4(2) of ILO Convention 169 requires those measures to be adopted in accordance with the freely-expressed wishes of the indigenous peoples concerned. In short, indigenous-specific instruments and the jurisprudence of treaty monitoring bodies affirm that the obligation of States relating to the right to culture of indigenous peoples is not limited to the State remaining neutral and not interfering with indigenous peoples’ right to culture but also includes taking positive measures to protect and promote its development. Taken as a whole, contemporary international human rights law provides a wide-ranging approach to recognizing the various aspects of indigenous peo­ ples’ right to culture. In this respect, UN treaty monitoring and regional human rights bodies have gone beyond the literal interpretation of the cultural rights provision of their respective conventions. They have adapted the general right to culture in a manner that addresses the special circumstances and essential aspects of indigenous peoples’ culture. Most importantly, these bodies have protected indigenous peoples’ particular way of life associated with the use of ancestral lands and natural resources and, in so doing, have imposed positive obligations on States to protect those aspects of indigenous peoples’ culture. 4. Property rights to lands and natural resources Property rights can be described in general terms as ‘norms governing [how] rights over property can be established, and to what extent the holder of a property right can exercise control over and use of her or his property’.149 The issue of whether indigenous peoples150 hold property rights to lands, ter­ ritories, and natural resources that they have traditionally occupied or used has been subject to intense debate until recent decades. As discussed in Chap­ ter 2, indigenous peoples were denied their lands and territories under the 148 ILO Convention 169 (n 80), Art 2(1). See also Article 8 of UNDRIP.

149 M Åhrén, Indigenous Peoples’ Status (n 25), 164.

150 It is useful to clarify at the outset that ‘local indigenous communities’, rather than indig­ enous peoples as a whole, are the legal subjects of property rights over traditional lands and natural resources. Hence, the use of the term ‘indigenous peoples’ in connection with prop­ erty rights over lands and natural resources in this book refers to ‘indigenous communities’.

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doctrines of discovery and terra nullius. By enforcing these doctrines, States legally erased the existence of indigenous peoples and considered indigenous peoples’ ways of using their traditional lands and territories as insufficient to elicit property rights.151 Nonetheless, this understanding has changed with the development of international human rights law and jurisprudence. This section explores these developments to examine the content and scope of indigenous peoples’ right to property over their traditional lands and natural resources. 4.1 Property rights to traditional lands under indigenous­ specific human rights instruments The indigenous-specific human rights instruments provide detailed and explicit recognition and protection of the property rights of indigenous peo­ ples over their traditional lands and territories. Article 14 of ILO Convention 169 provides the core of those rights, stating that: ‘The rights of owner­ ship and possession of the [indigenous] peoples concerned over the lands which they traditionally occupy shall be recognized’.152 Article 26(1) of the UNDRIP similarly proclaims that: ‘Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occu­ pied or otherwise used or acquired’. These rights include ‘the right to own, use, develop and control’ those lands, territories, and resources.153 These instruments make it clear that traditional occupation or use is the main basis for indigenous peoples’ ownership and possession rights over their lands and territories. Yet, none of the instruments defines ‘traditional occupation’. The ILO secretariat clarifies that ‘lands indigenous peoples traditionally occupy’ refers to ‘[t]he lands where indigenous . . . peoples have lived over time, and which they have used and managed according to their traditional practices. These are the lands of their ancestors, and which they hope to pass on to future generations’.154 The most important determining element is, thus, the use of lands and territories ‘in accordance with ancestral patterns of use and occupation’.155 The recognition of indigenous property rights over lands based on tradi­ tional occupation or use has several implications. First, it suggests that such rights are pre-existing and ancestral, grounded in indigenous traditions and

151 152 153 154

See Chapter 2 of this book for a detailed discussion.

ILO Convention 169 (n 80), Art 14(1) (emphasis added).

UNDRIP (n 21), Art 26(2) (emphasis added).

International Labour Office, ILO Convention on Indigenous and Tribal Peoples, 1989 (No

169): A Manual (ILO 2003) 31 (emphasis added). 155 A Erueti, ‘The Demarcation of Indigenous Peoples’ Traditional Lands: Comparing Domes­ tic Principles of Demarcation with Emerging Principles of International Law’ (2006) 23(3) Arizona Journal of International and Comparative Law 543.

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customs, rather than obtainable at the good will of the State.156 In other words, indigenous peoples’ property rights over lands are not dependent on prior recognition by the domestic legal system. Rather, traditional pos­ session of the land produces an ‘equivalent effect as that of state-granted full property title’, and this form of possession is sufficient for indigenous peoples to demand official recognition and registration of their commu­ nal ownership.157 Second, it implies that recognition and protection of the property rights of indigenous peoples over their lands necessarily require recognition of the specific modalities and unique forms of landholding sys­ tems of the indigenous communities concerned.158 These requirements are explicitly provided under Article 26(3) of the UNDRIP, which stipulates that recognition of indigenous lands ‘shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned’.159 In this respect, indigenous-specific human rights instruments put particular emphasis on the collective/communal aspect of indigenous land rights.160 With regards to the content of the right, the ownership and possession rights of indigenous peoples to their traditional lands enable them ‘to exer­ cise all powers accruing to an owner or possessor’ – the right to use, reap the fruits of the land, and to alienate it.161 Consequently, indigenous peoples have the right to transmit their lands from generation to generation according to their own customs.162 They also have a right ‘not to be removed from their lands’ except in certain circumstances where their relocation is considered necessary and unavoidable.163 In such circumstances, relocation of indige­ nous communities should be implemented following appropriate procedures established by law and should guarantee proper remedies. These procedures and remedies include, inter alia, (i) the duty to consult, or obtain the consent of, the indigenous peoples concerned; (ii) the right to return to their tradi­ tional lands when the grounds for relocation cease to exist or, if the return is not possible (for objective, specific, and justified reasons), restitution with

156 G Otis and A Laurent, ‘Indigenous Land Claims in Europe: The European Court of Human Rights and the Decolonization of Property’ (2013) 4(2) Arctic Review on Law and Politics 156, 162. 157 See IACtHR, Awas Tingni Community (n 128), [151–153]; ACtHPR, Endorois Case (n 64), [209]. 158 This understanding has a bearing on the exact area(s) of land to be recognized and demar­ cated by the State. 159 For similar provisions, see ILO Convention 169 (n 80), Arts 5(a), 8(1) & 13(1); ADRIP (n 21), Art 25(4) & (5). 160 ILO Convention 169, ibid., Art 13(1); UNDRIP (n 21), Art 26; ADRIP, ibid., Art 6. 161 G Ulfstein, ‘Indigenous Peoples’ Right to Land’ (2004) 8 Max Planck Yearbook of United Nations Law 1, 22. 162 ILO Convention 169 (n 80), Art 17. 163 Ibid., Art 16(1)(2); UNDRIP (n 21), Art 10.

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lands of equal quality and legal status; (iii) and payment of appropriate com­ pensation for any loss resulting from the relocation.164 In addition to exclusive ownership or possession rights, indigenous peoples also have a right to the continued non-exclusive access and use of lands. The second sentence of Article 14(1) of ILO Convention 169 requires that States take appropriate measures to safeguard the rights of indigenous peoples ‘to use lands not exclusively occupied by them, but to which they have tradition­ ally had access for their subsistence and traditional activities’.165 This provi­ sion offers protection to the typical feature of most indigenous peoples’ land use patterns, which is characterized as non-sedentary, non-exclusive, overlap­ ping, and ‘shared . . . between groups’.166 The third sentence of Article 14(1) of ILO Convention 169 reiterates the protection of this form of land use by explicitly requiring that States pay special attention ‘to the situation of nomadic peoples and shifting cultivators’.167 These provisions, read together with Article 13(1) of ILO Convention 169 and Article 25 of UNDRIP, suggest that the rights of indigenous peoples to continue using the lands and territories to satisfy their subsistence needs and to conduct other traditional activities – such as cultural and spiritual rituals and ceremonies – does not necessarily require their permanent presence in, nor exclusive control of, those lands and territories. ILO Convention 169 and the UNDRIP thus reaffirm indigenous peoples’ own land tenure system in contrast to Western notions of private property that require intensive, exclusive, and continued use of the land. These instruments also impose specific obligations on States to guarantee effective protection of indigenous peoples’ rights of ownership, possession, or the continued use of their traditional lands. First, States are required to take appropriate legislative measures – either by adopting new laws or by amending existing ones that impede the protection of indigenous rights – to expressly recognize the communal property rights of indigenous communities over their traditional lands.168 Legislative measures help give domestic legal effect and ensure legal certainty to the property rights of indigenous peo­ ples over their traditional lands recognized under the various international human rights instruments. In other words, unlike a de facto entitlement to lands (which amounts to mere privilege), de jure ownership, possession, and use rights guarantee effective protection for indigenous peoples.169

164 ILO Convention 169, ibid., Arts 15(2) & 16; UNDRIP, ibid., Arts 10 & 28. 165 Emphasis added. See also Art 26(1) of UNDRIP and Art 25(5) of ADRIP for similar recog­ nition of non-exclusive use rights. 166 J Anaya and RA Williams, The Protection of Indigenous Peoples’ Rights over Land and Natural Resources (n 111), 45. 167 Emphasis added. 168 ILO Convention 169 (n 80), Art 14(2); UNDRIP (n 21), Art 26(3). 169 IACtHR, Saramaka People (n 131), [110 & 115]; IACtHR, Kaliña and Lokono Peoples (n 135), [133]; and AfComHPR, Endorois (n 64), [205 & 206].

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Second, States are obliged to ‘take steps as necessary to identify [and demarcate] the lands which the [indigenous] peoples concerned traditionally occupy’.170 The UN study on the relationship of indigenous peoples with their lands defines demarcation as ‘a formal process of identifying the actual locations and boundaries of indigenous lands or territories and physically marking those boundaries on the ground’.171 Stressing the significance of demarcating indig­ enous peoples’ lands, the study remarks that ‘purely abstract or legal recogni­ tion of indigenous lands, territories or resources can be practically meaningless unless the physical identity of the property is determined and marked’.172 Fail­ ure to demarcate the lands and territories of indigenous peoples not only makes them vulnerable to encroachment by outsiders but also creates uncertainty as to the extent of their property rights and limits their ‘ability to effectively and freely develop their lands and resources on their own terms’.173 Importantly, the manner and extent of indigenous peoples’ traditional occupation or use patterns determines the exact areas of lands to be recognized and demarcated by States. Erueti observes that ‘the lands to be demarcated would not be limited only to those areas of land occupied on a regular basis, such as principal habita­ tions, but would extend to other surrounding areas occupied on a traditional basis’.174 With respect to lands not exclusively occupied by indigenous peoples, States are obliged to take appropriate measures to make access to those lands possible.175 In the context of traditional cross-border (nomadic) land use, this obligation may require a State to, inter alia, conclude a bilateral agreement with a neighboring State so as to ensure that its indigenous peoples have con­ tinued access and use of the lands on the other side of the border. Third, States have an obligation to establish effective processes to adjudicate indigenous peoples’ claims over their traditional lands.176 This obligation applies not only to indigenous claims over lands currently possessed but also to those lands traditionally used in the past but no longer in their possession. The latter is especially the case if the lands are not transferred to third parties in good faith or if the indigenous peoples concerned have still maintained a cultural and spiritual connection with those lands despite the title being held by a third party.177

170 ILO Convention 169 (n 80), Art 14(2) (emphasis added). The ADRIP (n 21) has also emphasized the obligation of States to demarcate and title the lands of indigenous peoples according to Art 25(5). 171 EIA Daes (Special Rapporteur), Prevention of Discrimination and Protection of Indigenous Peoples and Minorities: Indigenous Peoples and their Relationship to Land, Final Working Paper, UN Doc E/CN.4/Sub.2/2001/21 (2001), [50]. 172 Ibid. 173 J Anaya and RA Williams, The Protection of Indigenous Peoples’ Rights Over Land and Natural Resources (n 111), 77. 174 A Erueti, The Demarcation of Indigenous Peoples’ Traditional Lands (n 155), 603. 175 ILO Convention 169 (n 80), Art 14(1). 176 Ibid., Art 14(3); UNDRIP (n 21), Art 27. 177 For example, in Moiwana Community (n 129), the IACtHR concluded that the N’djuka people were ‘the legitimate owners of their traditional lands’ even if they did not have

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In conclusion, indigenous-specific human rights instruments recognize the property rights of indigenous peoples to their lands, which emanate from and are grounded in indigenous customs and traditions. These instruments specifically emphasize recognition of the unique collective spiritual and cul­ tural ties that indigenous peoples have to their lands and territories – a per­ ception that differs significantly from the Western liberal understanding of private property rights to land. Detailed in the next section, the property rights provisions of general human rights instruments have also been inter­ preted to protect the specific aspects of indigenous peoples’ rights to their lands and territories. 4.2 Property right to traditional lands under general human rights instruments and practices of UN treaty monitoring and regional human rights bodies General global and regional human rights instruments recognize the right to property at various levels of depth. The UDHR provides that: ‘[e]veryone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property’.178 While prohibiting arbitrary deprivation of property, the UDHR does not specify the circumstances under which deprivation of property could be considered ‘arbitrary’. The CERD Convention similarly stipulates that State parties undertake to guarantee – without distinction as to race, color, or national or ethnic origin – ‘the right [of everyone] to own property alone as well as in association with others’.179 In the Inter-American human rights system, both the American Declaration of the Rights and Duties of Man (ADRDM) and the ACHR recognize the right to property. Article 23 of the ADRDM recognizes the right of every person ‘to own private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and the home’.180 Article 21 of the ACHR similarly provides that: Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. No one shall be deprived of his property except upon payment of just possession thereof, as they unwillingly left those lands as a result of violence perpetrated against them [134]. 178 Universal Declaration of Human Rights (UDHR), UNGA Res 217 (III) (10 Decem­ ber 1948), Art 17 (emphasis added). 179 CERD Convention (n 74), Art 5(d)(v). The twin human rights conventions do not provide a separate provision recognizing the right to property. In both conventions, property is merely mentioned as one of the illegitimate grounds of discrimination in the enjoyment of other rights contained in those conventions (see ICCPR (n 3), Arts 2(1), 24 & 26; and ICESCR (n 3), Art 2(2)). 180 American Declaration of the Rights and Duties of Man, OAS Res XXX, adopted at the 9th International Conference of American States, at Bogota, Colombia (2 May 1948), Art 23.

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compensation, for reason of public utility or social interest, and in the cases and according to the forms established by law.181 While the ECHR does not contain a provision dealing with the right to property, its Optional Protocol No 1 embraces the right under Article 1. It stipulates that ‘[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law’.182 Although the Optional Protocol does not clearly spell out the term property, the European Court of Human Rights (ECtHR) has clarified that the phrase ‘the right to peaceful enjoyment of possession’ guarantees the right to property.183 This understanding has received general acceptance.184 Similarly, Article 14 of the ACHPR provides that ‘the right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws’. Unlike the previously mentioned general human rights instruments, Article 14 of the ACHPR does not explicitly state the subjects of the right to prop­ erty (i.e., it leaves open the issue of whether individuals or groups are the holders of the right to property). The property rights provisions of the aforementioned general human rights instruments share some common features. First, all the instruments recognize the right of individuals to enjoy their property on an equal basis with others and a right not to be arbitrarily deprived of such property. Thus, they have an individual orientation. Second, none of the instruments limits the protection of property to any particular kind of property, which implies that the protection applies to a wide range of economic interests – including movable and immovable property and tangible or intangible interests having value (such as shares and patents).185 Third, they recognize that the right to property is not absolute and is subject to legitimate restrictions. Fourth, none of the instruments makes explicit reference to the property rights of indig­ enous peoples. However, despite the absence or express reference to indigenous peoples, treaty monitoring bodies and regional human rights courts and commissions 181 ACHR (n 4), Art 21(1) & (2) (emphasis added). 182 Protocol to the Convention for the Protection of Human Rights and Fundamental Free­ doms (Protocol No 1), concluded at Paris on 20 March 1952, 213 UNTS 221 (entered into force 18 May 1954), Art 1 (emphasis added). 183 See Marckx v Belgium, ECtHR (Judgement) [1979], [63]; Doğan and Others v Turkey, ECtHR (Judgement) [2004], [138–139]. 184 For a general discussion on this point, see M Carss-Frisk, ‘The Right to Property: A Guide to the Implementation of Article 1 of Protocol No 1 to the European Convention on Human Rights’ (2001) 4 Human Rights Handbooks. 185 Ibid., 6.

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have interpreted and applied the general property rights provisions to protect indigenous peoples’ rights to lands and territories. The CERD Committee, for example, in its General Comment No. 23, calls upon States to recog­ nize and protect the rights of indigenous peoples to ‘own, develop, control, and use their communal lands, territories and resources’.186 The Committee has reiterated this view in its Concluding Observations on reports of several States.187 Similarly, although the twin human rights conventions do not con­ tain a property right provision, the HRC and CESCR have interpreted the cultural right provisions in a manner that protects the rights of indigenous peoples relating to traditional lands, territories, and resources, as discussed previously. In particular, the CESCR, in its 2022 General Comment No. 26 on land, provides a detailed interpretation of the interaction between land and other economic, social, and cultural rights. Here, the Committee specifi­ cally outlines the special significance of land for indigenous peoples and the obligations of States to demarcate and protect those lands from encroachment and respect the rights of indigenous peoples ‘to manage the lands according to their internal modes of organization’.188 The case law of the Inter-American human rights system is more extensive in this regard. In Awas Tingni Community v Nicaragua – which concerned logging activities by private corporations on the communal lands of the Awas Tingni communities of the Atlantic coast of Nicaragua – the IACtHR held that ‘human rights treaties are live instruments whose interpretation must adapt to the evolution of the times and, specifically, to current living conditions’.189 Thus, adopting an evolutionary interpretation that considers developments in conceptions of indigenous property to lands,190 the Court concluded that Article 21 of the ACHR ‘protects the right to property . . . which includes, among others, the rights of members of the indigenous communities within the framework of communal property’.191 The IACtHR placed particular emphasis on the communal aspect of indigenous peoples’ property rights,

186 CERD Committee, General Recommendation No 23 (n 77), [5]. 187 See the following recent examples: CERD Committee, Concluding Observation: Philip­ pines, UN Doc CERD/C/PHL/CO/ 21–25 (28 April  2023), [13–14]; CERD Committee, Concluding Observation: Russia, UN Doc CERD/C/RUS/CO/ 25–26 (28 April 2023), [29– 30]; CERD Committee, Concluding Observation: Colombia, UN Doc CERD/C/COL/CO/ 17–19 (22 January 2020), [18–21]; CERD Committee, Concluding Observation: United States of America, UN Doc CERD/C/USA/CO/10–12 (21 September  2022), [49–50]; CERD Committee, Concluding Observation: Mexico, UN Doc CERD/C/MEX/CO/18–21 (19 September 2019), [22–23]. 188 CESCR, General Comment No. 26 on land (n 45), [16].

189 IACtHR, Awas Tingni Community (n 128), [146].

190 In this context, the IACtHR referred to the relevant provisions of ILO Convention 169

even though Nicaragua was not a party (see in particular the concurring opinion of Judge Garcia Ramirez, [7–9]). 191 IACtHR, Awas Tingni Community (n 128), [148].

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concluding that ‘among indigenous peoples there is a communitarian tradi­ tion regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community’.192 The IACtHR further emphasized that the rights to property recognized under international human rights law have ‘autonomous meaning’, and ‘they cannot be made equivalent to the meaning given to them in domestic law’.193 Accordingly, it concluded that Article 21 of the ACHR protects indigenous communal property over traditional lands, even if not held under a title deed, as required by domestic law. The Court then found Nicaragua in violation of the property rights of the Awas Tingni community for granting third parties concessions to log within the commu­ nities’ traditional land without their consent and for Nicaragua’s failure to delimit, demarcate, and title their lands.194 The IACtHR has reiterated its findings in Awas Tingni in a number of sub­ sequent cases relating to the communal property rights of indigenous com­ munities over their traditional lands and territories.195 Particularly, in Yakye Axa Indigenous Community v Paraguay, the IACtHR held that to effectively protect indigenous peoples’ communal rights to traditional lands,196 States ‘must take into account the specific characteristics that differentiate .  .  . indigenous peoples from the general population’ – including their ‘specific economic and social characteristics, as well as their situation of special vul­ nerability, their customary law, values and customs’.197 Similarly, in Maya Indigenous Communities v Belize, the IACHR concluded that the protection of indigenous peoples’ property rights requires the ‘taking of special meas­ ures to ensure recognition of the particular and collective interest that indig­ enous peoples have in the occupation and use of their traditional land and resources’.198 The Commission found Belize in violation of the right to prop­ erty enshrined under Article 23 of the ADRDM, since Belize failed to recog­ nize and demarcate the communal property rights of the Maya community as well as to take appropriate measures to consult the communities prior to the

Ibid., [149] (emphasis added).

Ibid., [146].

Ibid., [153].

See, for example, the following: IACtHR, Yakye Axa Indigenous Community (n 130),

[137–143, 146]; IACtHR, Sawhoyamaxa Indigenous Community (n 130), [60, 118–120 & 143]; IACtHR, Moiwana Community (n 129), [132 & 133]; IACtHR, Saramaka People (n 131), [95, 96, 102, 115 & 194]; IACtHR, Xákmok Kásek Indigenous Community (n 130), [85–87]; and IACtHR, Kaliña and Lokono Peoples (n 135), [124, 125, 129, 133 & 142]. 196 The domestic law of Paraguay has recognized communal property rights of indigenous communities. 197 IACtHR, Yakye Axa Indigenous Community (n 130), [51 & 63]. 198 Maya Indigenous Communities of the Toledo District v Belize, IACHR (Merits) [2004], Case No 12.053 (12 October 2004), [117] (emphasis added).

192 193 194 195

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granting of concessions for logging and oil extraction activities.199 In short, the jurisprudence of the IACtHR and the IACHR has clearly accepted that indigenous customary land tenure systems are the basis of property rights protected under the ACHR and the ADRDM. This emphasis on recognition of the specific versions and modalities of indigenous peoples’ uses and enjoy­ ment of property is significant as it underlines the unique relationship that indigenous peoples have with their traditional lands, which in turn ensures their survival as distinct peoples.200 The African human rights bodies follow the interpretative methodology of the Inter-American Court and Commission on Human Rights in recog­ nizing indigenous peoples’ property rights to their lands. In Endorois, the AfComHPR held that Kenya has a duty under Article 14 of the ACHPR ‘to recognize the right to property of the Endorois community within a frame­ work of a communal property system’, and to establish mechanisms neces­ sary to give domestic legal effect to such right.201 The ACtHPR also upheld the Commission’s interpretation in Ogiek.202 To determine the extent of the property rights of the Ogiek communities over their ancestral lands, the Court interpreted Article 14 of the ACHPR ‘in light of the applicable princi­ ples, especially by the United Nations’, and made specific reference to Arti­ cle 26 of the UNDRIP in that context.203 The ACtHPR then concluded that ‘on the basis of article 14 of the Charter read in light of [Article 26] of the UNDRIP’, the Ogiek indigenous communities ‘have the right to occupy their ancestral lands, as well as [to] use and enjoy the said lands’.204 The ACtHPR found Kenya in violation of these rights by removing the Ogieks from their lands against their will.205 To sum up, the relevant global and regional human rights bodies have progressively interpreted the general property rights standards to recognize and protect the distinctive property rights of indigenous peoples over their traditional lands and territories.206 These human rights bodies recognize such rights with due consideration for indigenous peoples’ varied and specific

199 Ibid., [135, 144, 193 & 194]. Since Belize was not a party to the ACHR, the applicants submitted their claim based only on the ADRDM. 200 For a detailed discussion, see IACHR, Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, OEA/Ser.L/V/II, Doc 56/09 (30 December 2009). 201 AfComHPR, Endorois Case (n 64), [196]. See also [209, 228 & 238]. 202 ACtHPR, Ogiek Case (n 66), [123]. 203 Ibid., [125 & 126]. 204 Ibid., [128]. 205 Ibid., [131]. 206 For a detailed discussion, see N Bankes, ‘The Protection of the Rights of Indigenous Peoples to Territory Through the Property Rights Provisions of International Human Rights Instru­ ments’ (2011) 3 Yearbook of Polar Law 57.

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forms and modalities of control, ownership, and use of land pursuant to their customary laws and practices. In short, the jurisprudence of UN treaty monitoring bodies and regional human rights institutions have embraced the core aspects of indigenous peoples’ rights to traditional lands and territories consistent with the protection offered by the indigenous-specific instruments. 4.3 Property rights over natural resources pertaining to indigenous lands As discussed earlier in this chapter, the right to economic self-determination and the right to culture of indigenous peoples includes recognition of the right to natural resources. Similarly, the property rights provisions of gen­ eral human rights instruments have been interpreted to offer protection to the natural resources located on and within the traditional lands of indig­ enous peoples.207 The rights of indigenous peoples over the natural resources pertaining to their lands are also specifically provided for under Article 15 of ILO Convention 169, which stipulates that: ‘The rights of the [indigenous] peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right .  .  . to participate in the use, management, and conservation of these resources’.208 While ILO Convention 169 provides a special safeguard to the rights of indigenous peoples ‘to the natural resources pertaining to their lands’, it does not define the term ‘natural resources’. The ordinary meaning of the expression ‘natu­ ral resources pertaining to their lands’ may be understood as referring to all natural resources, both surface and sub-surface, located on or within all lands and territories in which indigenous peoples have ownership, pos­ session, and use rights acquired through traditional ownership, traditional occupation, or traditional use.209 For example, in Saramaka v Suriname, the Saramaka people argued that their right to use and enjoy all natural resources that lie on and within their lands is a necessary condition for their existence as a people.210 Accordingly, they claimed that they have a right ‘to own everything, from the very top of the trees to the very deepest place that you could go under the ground’.211 Thus, indigenous peoples generally claim to have property rights over all natural resources located on and within their traditional lands. 207 See, for example, the following cases: IACtHR, Moiwana Community (n 129), [134]; IACtHR, Saramaka People (n 131), [129–140]; AfComHPR, Endorois Case (n 64), [225– 238 & 290–294]. 208 ILO Convention 169 (n 80), Art 15(1) (emphasis added). 209 EIA Daes, ‘Indigenous Peoples’ Rights to Land and Natural Resources’ in N Ghanea and A  Xanthaki (eds), Minorities, Peoples and Self-Determination (Martinus Nijhoff 2005) 75, 88. 210 IACtHR, Saramaka People (n 131), [118]. 211 Ibid., [119].

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Nonetheless, the nature and type of resource is a relevant consideration in determining the extent of property rights that indigenous peoples have over such resources. Hence, some general considerations must be taken into account in determining the scope and extent of indigenous peoples’ property rights over natural resources pertaining to their lands. The first main con­ sideration/criterion relates to whether the resource is traditionally used by, or culturally relevant to, the indigenous peoples concerned. Article 26 of the UNDRIP makes this distinction clear. Traditionally used or culturally relevant natural resources are those resources to which indigenous peoples have a tra­ ditional attachment in the sense that ‘they have historically held or enjoyed the incidents of ownership; namely, use, possession, control, and right of disposition’.212 These are resources that indigenous peoples have traditionally used for subsistence, cultural, and religious activities. In Saramaka v Suri­ name and Kichwa Indigenous Peoples of Sarayaku v Ecuador, the IACtHR concluded in identical terms that in the context of indigenous and tribal com­ munities, ‘the right to use and enjoy their territory would be meaningless . . . if said rights were not connected to the natural resources that lie on and within the land’.213 The Court further stressed that natural resources that need special protection under Article 21 of the ACHR are ‘those natural resources tradi­ tionally used and necessary for the very survival, development and continua­ tion of such peoples’ way of life’.214 In Endorois, the AfComHPR concurred, in identical terms, with the IACtHR’s conclusion.215 This clearly shows that the greatest concern and focus of international law relates to natural resources traditionally used by indigenous peoples. These types of resources are related to the specific cultural situations of indigenous peoples and vary depending on the cultures and local circumstances of the indigenous peoples concerned. Regarding the extent of rights over traditionally used or culturally rel­ evant resources, the IACtHR concluded in Saramaka v Suriname that the right to enjoy traditionally owned lands necessarily implies a similar right with regards to natural resources traditionally used by, and necessary for the survival of, indigenous communities.216 In this respect, Åhrén argues that ‘to the extent an indigenous community has traditionally used natural resources situated on or within its traditional territory, the community must reasonably hold the same right over such resources as it does with regard to the land area as such’.217 This implies that indigenous peoples have full

212 EIA Daes, Indigenous Peoples’ Rights to Land and Natural Resources (n 209), 88. 213 IACtHR, Saramaka People (n 131), [122]; IACtHR, Kichwa Indigenous Peoples of Saray­ aku (n 133), [145]. 214 IACtHR, Saramaka People, ibid., [122]; IACtHR, Kichwan Indigenous Peoples of the Sarayaku, ibid., [146]. 215 AfComHPR, Endorois Case (n 64), [261]. 216 IACtHR, Saramaka People (n 131), [121 & 141]. 217 M Åhrén, Indigenous Peoples’ Status (n 25), 213.

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ownership rights over traditionally used or culturally relevant natural resources found within the lands and territories they have traditionally owned or occupied. Their rights are not only limited to the right to ‘partici­ pate in the use, management and conservation of the resources’ as stipulated in Article 15(1) of ILO Convention 169, but also include the right to dispose freely of such natural resources.218 On the other hand, indigenous peoples only have the rights to continue using resources located on lands not exclu­ sively used by them. The second important consideration relates to whether the resources in question are surface or sub-surface resources. Many States maintain the position that they retain ownership over sub-surface resources.219 Ulfstein argues that the rights of indigenous peoples to exploit and dispose of sub­ surface resources pertaining to their lands may be restricted because owner­ ship of these resources is reserved for the State, which uses them to provide public welfare.220 This implies that a State has a legal right to decide and grant licenses for the exploration and exploitation of mineral and other sub-surface resources found in indigenous peoples’ lands and territories, as well as to collect the associated revenues. However, as pointed out earlier, such a restrictive interpretation is subject to the general consideration of whether the sub-surface natural resource in question is traditionally used by indigenous peoples. If the sub-surface resources are traditionally used by indigenous peoples, it is the indigenous peoples and not the State that have ownership rights over such resources.221 The hesitant formulation evident in the expression ‘[i]n cases in which the State retains the ownership of mineral or sub-surface resources’222 in Article 15(2) of ILO Convention 169 sug­ gests that States do not always have automatic ownership rights over all sub­ surface resources located in indigenous peoples’ lands. The implication is that there are certain sub-surface resources over which indigenous peoples are the ultimate owners – including such sub-surface resources that have traditionally been used by indigenous peoples.223 Therefore, if a resource is culturally relevant or traditionally used, indigenous peoples exercise full

218 IACtHR, Saramaka People (n 131), [121].

219 States usually claim this in disputes with indigenous communities before regional human

rights courts and commissions. 220 G Ulfstein, Indigenous Peoples’ Right to Land (n 161), 31. 221 Åhrén notes that ‘some indigenous peoples have a long tradition of using sub-surface, and perhaps in particular sub-soil, resources’, and that these resources deserve equal protection as ‘resources traditionally used’ (See M Åhrén, Indigenous Peoples’ Status (n 25), 214). 222 Emphasis added. 223 This line of interpretation has been followed by the Constitutional Court of South Africa in the case of Richtersveld Community. The Court concluded that the Richtersveld Com­ munity ‘held ownership of the subject land under indigenous law’, and this entailed a right to ‘use the . . . land for grazing and hunting and to exploit its natural resources, above and beneath the surface, [including] minerals and precious stones’. See Alexkor

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ownership rights over the resource regardless of whether it is classified as a surface or sub-surface resource. Moreover, despite the priority that international law attaches to the pro­ tection of culturally relevant and traditionally used natural resources, indig­ enous peoples also have certain rights with respect to non-traditionally used sub-surface resources located in their traditional lands and territories. First, indigenous peoples have the right to be consulted and to participate in envi­ ronmental and social impact assessment studies before a State undertakes or permits any programs for the exploration or exploitation of sub-surface natural resources.224 Second, if the sub-surface resource extraction project is permitted, Article 15(2) of the ILO Convention still guarantees other rights, including the right to participate in sharing the benefits that result from the exploitation and use of natural resources and the right to receive fair compen­ sation for any damages caused as a result of the extraction activities. These safeguards ensure that the exploration and exploitation of non-traditionally used sub-surface natural resources do not significantly affect the use and enjoyment of other natural resources traditionally used by or culturally rel­ evant to indigenous peoples thereby protecting the economic and cultural survival of the community.225 In conclusion, international human rights law and jurisprudence recog­ nize the rights of indigenous peoples to the natural resources pertaining to their lands. Yet, the nature and type of resource determines the scope of such rights. Current international law and jurisprudence support full ownership with respect to traditionally used or culturally relevant natural resources. However, with respect to natural resources that are not traditionally used, indigenous peoples’ rights are expressed in terms of consultation (which may include FPIC), participation in benefit sharing, and in terms of payment for compensation in the event of damage. 5. The right to equality and non-discrimination Indigenous peoples were and still are victims of discrimination, either legally or in practice, based on their different identities. The report of the UN semi­ nar of experts on the effect of discrimination on State-indigenous relations Ltd and the Republic of South Africa v The Richtersveld Community [2003] Consti­ tutional Court of South Africa, CCT 19/03 (14 October 2003), [62, 102 & 103(1)(a)] (emphasis added). 224 ILO Convention 169 (n 80), Art 15(2) read together with Art 7; and UNDRIP (n 21), Art 32(2) & (3). 225 These safeguards have been widely recognized in the jurisprudence of the IACtHR. See for example the cases of Saramaka People (n 131), [129–140  & 155–157]; and Kaliña and Lokono Peoples (n 135), [202–230]. See also Report of the Special Rapporteur on the Rights of Indigenous Peoples, J Anaya, Extractive Industries and Indigenous Peoples, UN Doc A/HRC/24/41 (1 July 2013).

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elaborates on the causes and effects of racial discrimination226 on indigenous peoples as follows: Racial discrimination against indigenous peoples is the outcome of a long historical process of conquest, penetration, and marginalization, accom­ panied by attitudes of superiority and by a projection of what is indige­ nous as “primitive” and “inferior”. The discrimination is of a dual nature: on the one hand, gradual destruction of the material and spiritual condi­ tions [necessary] for the maintenance of their [unique way of life], on the other hand, attitudes and behaviors signifying exclusion or negative dis­ crimination when indigenous peoples seek to participate in the dominant society.227 These long-lasting historical and ongoing attitude and practice of treating indigenous peoples as ‘inferior’ to dominant society has led to the depriva­ tion of the human rights and fundamental freedoms of indigenous peoples. However, the right to non-discrimination requires the absence of any form of discrimination against indigenous peoples as a precondition for them to fully enjoy their human rights.228 In this regard, Article 3(1) of ILO Convention 169 stipulates that ‘[i]ndigenous . . . peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance and discrimina­ tion’. Article 2 of the UNDRIP similarly provides that ‘[i]ndigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity’.229 These indigenous-specific human rights instruments provide general protec­ tion to indigenous peoples against discrimination in the enjoyment of all cat­ egories of their human rights. The right to equality and non-discrimination is also widely recognized in several general global and regional human rights instruments. The UDHR recognizes that ‘all human beings are born free and equal in dignity and

226 The CERD Convention defines ‘Racial discrimination’ broadly as ‘any distinction, exclu­ sion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’ (Art 1(1)). See also CERD Com­ mittee, General Recommendation No 24: Concerning Article 1 of the Convention, UN Doc A/54/18 (Fifty-fifth session 1999), Annex V. 227 Report of the UN Seminar of Experts on the Effects of Racism and Racial Discrimination on the Social and Economic Relations between Indigenous Peoples and States, UN Doc E/ CN.4/1989, HR/PUB/89/5 (1989), 5. 228 J Anaya, Indigenous Peoples in International Law, 2nd edn (OUP 2004) 129. 229 Emphasis added. Articles 44 and 46(2) & (3) of UNDRIP also recognizes the right to equal­ ity and non-discrimination.

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rights’230 and are ‘entitled to all the [human] rights and freedoms . . . with­ out distinction of any kind, such as race . . . language, religion . . . national or social origin, property, birth or other status’.231 Article 7 of the UDHR further provides that ‘[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law’. Article 26 of ICCPR, while repeating Article 7 of the UDHR, further stipulates that ‘the law shall prohibit any discrimination and guarantee to all persons equal and effec­ tive protection against discrimination on any [illegitimate] ground’ includ­ ing race, language, religion, national or social origin, property, or another status. Article 2(2) of the ICESCR similarly imposes a general obligation on State parties to undertake and guarantee that all the rights contained in the Convention are ‘exercised without discrimination of any kind’. The CERD Convention is in its entirety devoted to the right to equality and non­ discrimination. It requires that all State parties ‘condemn racial discrimina­ tion and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms’.232 In this respect, the CERD Convention obligates State parties not only to refrain from any ‘act or practice of racial discrimination against persons, groups of persons or institutions’, but also to take measures ‘to ensure that all public authori­ ties and public institutions, national and local, shall act in conformity with this obligation’.233 Comparable recognitions and protections of the right to equality and non-discrimination also exist in the ECHR (Article 14 and Arti­ cle 1 of OP12), the ACHR (Articles 1(1) and 24), and the ACHPR (Articles 2, 3, 13 and 19). While none of these general human rights instruments makes specific ref­ erence to indigenous peoples, the respective treaty monitoring bodies have addressed the issue of discrimination against indigenous peoples. The CERD Committee, for example, has held that the ‘[CERD] Convention is a living instrument that must be interpreted and applied taking into account the circumstances of contemporary society’.234 The Committee has also issued a general recommendation specifically devoted to indigenous peoples where it recognizes that ‘discrimination against indigenous peoples falls under the scope of the [CERD] Convention’.235 Accordingly, it calls upon State par­ ties to take all appropriate measures to combat and eliminate all forms of discrimination against indigenous peoples in their application of the

230 231 232 233 234

UDHR (n 178), Art 1.

Ibid., Art 2. The UN Charter includes a similar provision in Article 1(3).

CERD Convention (n 74), Art 1(1).

Ibid., Art 2(1)(a).

CERD Committee, General Recommendation No 32: The Meaning and Scope of Special

Measures in the International Convention on the Elimination of All Forms of Racial Dis­ crimination, CERD/C/GC/32 (24 September 2009), [5] (emphasis added). 235 CERD Committee, General Recommendation No 23 (n 77), [1].

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Convention.236 The HRC, the CESCR, the IACtHR, and the ACtHPR adopt similar interpretations.237 In short, the right to equality and non-discrimination, incorporated in the various human rights instruments, requires that States, inter alia, reform their policies, laws, and practices to ensure that indigenous peoples are treated equally with others in all respects. Unlike the ordinary individualistic understanding of the right to non-discrimination – requiring all individuals to be treated equally in all cases, irrespective of differences in their ethnic and cultural backgrounds – the content and meaning of the right to non-dis­ crimination has evolved over time to embrace another expanded dimension, discussed in the next section. 5.1 Non-discrimination as a right to differential treatment In the context of general human rights instruments, the right to non-discrimi­ nation was initially intended to apply to all individuals equally and in all cir­ cumstances. This meant that providing ‘special rights for particular segments of society were perceived as inherently discriminatory’.238 This is manifested by the absence of express provisions on special measures in the twin human rights conventions as well as in the key regional human rights instruments. Similarly, although the CERD Convention requires State parties to take spe­ cial measures with respect to certain racial groups or members belonging to them,239 the main objective of such measures was not to protect and promote the cultural distinctiveness of the group. Rather, special measures under the CERD Convention were allowed only when such measures helped assimilate members of the minority into mainstream society.240 The Convention clearly stipulates this objective, providing that ‘special measures shall in no case entail as a consequence the maintenance of . . . separate rights for different racial groups’.241 Moreover, such special measures were allowed only tem­ porarily and ‘shall not be continued after the objectives for which they were taken have been achieved’242 – the objective clearly being integration. Thus, the initial understanding of the right to equality and non-discrimination did not encourage States to promote cultural diversity. 236 Ibid., [1 & 2]. 237 For example, see HRC, General Comment No 18: Non-Discrimination (Thirty-seventh ses­ sion, 1989); CESCR, General Comment No 20: Non-Discrimination in Economic, Social and Cultural Rights (art 2, para 2, of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/GC/20 (2 July 2009); IACtHR, Saramaka People (n 131), [103]; and ACtHPR, Ogiek Case (n 66), [142, 145 & 146]. 238 M Åhrén, Indigenous Peoples’ Status (n 25), 150.

239 CERD Convention (n 74), Arts 1(4) & 2(2).

240 M Åhrén, Indigenous Peoples’ Status (n 25), 151, 154.

241 CERD Convention (n 74), Arts 2(2) & 1(4) (emphasis added).

242 Ibid., Arts 1(4) & 2(2).

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Nonetheless, the right to equality and non-discrimination has evolved and has acquired a different meaning than initially understood. The new meaning of the right to non-discrimination is based on the premise that ‘treating [all] people in an identical manner is not [necessarily] the same as treating peo­ ple equally’.243 In other words, in circumstances characterized by structural or cultural differences, the conventional understanding of the norm of non­ discrimination can promote formal equality while leaving substantive inequalities intact and exacerbating disadvantages.244 Thus, the evolved under­ standing of the right to non-discrimination requires not only that all cases be treated equally but also that groups with different cultural backgrounds be treated differently. Eide argues that the core of indigenous peoples’ claim is not only to be given equal opportunities in mainstream culture but also ‘a right to maintain a different culture’ – a way of life of their own.245 This understanding requires States to take special measures that enable indigenous peoples to maintain their distinct collective way of life and cultural identity while co-existing with other sections of society – rather than as a means of facilitating their assimilation into the dominant culture.246 Indeed, assimila­ tion is strictly prohibited in contemporary international human rights law, as it defeats all of the core human rights guaranteed to indigenous peoples.247 The relevant human rights treaty monitoring bodies have clearly affirmed this evolved notion of the right to non-discrimination in their jurisprudence by progressively interpreting the equality and non-discrimination provi­ sions of their respective conventions. For example, the HRC observes that the right to equality ‘does not mean identical treatment in every instance’.248 The Committee, in effect, affirms the necessity of differential treatment to certain segments of a society inasmuch as the criteria for such differentiation are ‘reasonable and objective’.249 The CERD Committee similarly observes that uniform treatment of individuals or groups whose situations are 243 W Jonas and M Donaldson, ‘The Legitimacy of Special Measures’ in S Garkawe, L Kelly, and W Fisher (eds), Indigenous Human Rights (Sydney Institute of Criminology 2001) 10, 12. 244 K Gover, ‘Equality and Non-Discrimination in the UNDRIP: Articles 2, 6, and 7(1)’ in J Hohmann and M Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (OUP 2018) 179, 183. 245 A Eide, ‘Indigenous Self-Government in the Arctic, and their Right to Land and Natural Resources’ (2009) 1 Yearbook of Polar Law 245, 250. 246 See ILO Convention 169 (n 80), Art 4; UNDRIP (n 21), Art 21(2). The CERD Committee held that ‘special measures are not an exception to the principle of non-discrimination but are integral to its meaning and essential to . . . eliminating racial discrimination and advanc­ ing human dignity and effective equality’ (CERD Committee, General Recommendation No 32 (n 234), [20]). 247 The UNDRIP and ADRIP prohibit the forced assimilation of indigenous peoples in con­ crete terms under Articles 8 and 10, respectively. 248 HRC, General Comment No 18 (n 237), [8]. 249 Ibid., [10 & 13].

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objectively different will constitute ‘discrimination in effect’250 and the appli­ cation of the right to non-discrimination, therefore, requires consideration of the unique characteristics of indigenous communities as collectives.251 The CERD Committee underlined that ‘differentiation of treatment will not con­ stitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate’.252 Likewise, the CESCR notes that eliminating discrimination requires ‘paying suffi­ cient attention to groups of individuals which suffer historical or persistent prejudice’.253 It specifically emphasizes the need to recognize the rights of indigenous peoples through appropriate modalities. This means that their ‘specific human rights [are realized] in a way that is pertinent and suitable to [their] cultural modality or context, that is, respectful of the culture and cultural rights of . . . indigenous peoples’.254 The IACtHR, the ACtHPR, and the AfComHPR echo these observations in substantively similar terms.255 In light of this widespread practice, Åhrén argues that since ‘international legal sources sing the same hymn’ in affirming the new notion of the right to non-discrimination and because there is little evidence of non-acceptance by States, this dimension of the right to non-discrimination ‘has crystalized into customary international norm’.256 In conclusion, the right to non-discrimination – having a jus cogens status – is a fundamental human right considered to be a cornerstone of the human rights regime.257 This norm has served as a major vehicle for the recognition and protection of the various rights of indigenous peoples by removing ‘theo­ ries of indigenous inferiority’.258 In contemporary times, the norm manifests a duality in the sense that it does not only require indigenous individuals and groups to be treated equally but also that they are treated differently in certain circumstances. This differential treatment of indigenous peoples may require States to take special measures not only to temporarily correct 250 CERD Committee, General Recommendation No 32 (n 234), [8]. 251 Ibid., [4(e)]. See also CERD Committee, Concluding Observation: Suriname, UN Doc CERD/C/SUR/CO/16–18 (21 September 2022), [23–24]. 252 CERD Committee, General Recommendation No 14 on Article 1, Paragraph 1, of the Convention (Forty-second session, 1993) [2]. 253 CESCR, General Comment No 20 (n 237), [8(b) & 9]. 254 CESCR, General Comment No 21 (n 78), [16(e)]. 255 See IACtHR, Saramaka People (n 131), [103]; IACtHR, Yakye Axa Indigenous Communi­ ties (n 130), [51 & 63]; ACtHPR, Ogiek Case (n 66), [139]; and AfComHPR, Endorois Case (n 64), [196]. 256 M Åhrén, Indigenous Peoples’ Status (n 25), 155. 257 International Law Commission (ILC), Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (2006), conclusion 33. 258 A Xanthaki, ‘Culture: Articles 11(1), 12, 13(1), 15, and 34’ in J Hohmann and M Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A  Commentary (OUP 2018) 273, 286.

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certain disadvantages but also to enable them to permanently maintain their unique identity and thereby continue to exist and develop as distinct peoples. The right to non-discrimination applies in connection with other substantive rights of indigenous peoples, including the right to traditional lands and nat­ ural resources. The special significance of the right to non-discrimination in general – and its evolved understanding in particular – and its application to the specific context of indigenous peoples’ rights to marine space and marine resources is explored in Chapter 4 of this book. 6. The right to consultation and participation Consultation and participation enable indigenous peoples to acquire full information as well as an opportunity to influence any measures that may have a negative impact on their lives before such measures are planned, decided, or implemented.259 It is a procedure for dialogue and negotiation between indigenous peoples and States to guarantee effective protection of the rights of the former. The right of indigenous peoples to consultation and participation is firmly established in international law. ILO Convention 169 includes the right to consultation and participation of indigenous peoples as one of its foundational principles. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) notes that ‘consultation and participation constitute the cornerstone of Convention 169 on which all its provisions are based’.260 Indeed, the consultation and participation provisions of ILO Convention 169 ‘were among the fundamen­ tal principles included in the revision of ILO Convention 107, as a necessary requirement to eliminate the integrationist approach of that Convention’.261 ILO Convention 169 reflects the right to consultation and participation of indigenous peoples, inter alia, in Articles 6, 7, 15, and 16. In particular, Arti­ cle 6(1)(a) provides that State parties ‘shall consult the [indigenous] peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legisla­ tive or administrative measures which may affect them directly’.262 The con­ sultations ‘shall be undertaken in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures’.263 Article 6(1)(b) further imposes a positive obliga­ tion on States to ‘establish means by which [indigenous] peoples can freely participate .  .  . at all levels of decision-making .  .  . which concern them’, 259 International Labour Office, A Manual (n 154), 15.

260 ILO CEACR, General Observation on the Right of Indigenous and Tribal Peoples to Con­ sultation (Observation 2010/81), 6. 261 Ibid., 3. 262 ILO Convention 169 (n 80), Art 6(1)(a). 263 Ibid., Art 6(2) (emphasis added).

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including in the formulation, impact assessment studies, implementation, and evaluation of proposed measures that may affect them.264 The UNDRIP also recognizes the right to consultation in, inter alia, Articles 10, 18, 19, 29, 30(2), and 32, whilst the ADRIP recognizes the same right in Articles 23 and 29(4). Moreover, the Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters (Aarhus Convention) is of general significance to the right of indigenous peoples to be consulted and participate in decision-making which relates to State meas­ ures that affect their environment.265 This Convention recognizes that ‘ade­ quate protection of the environment is essential to human well-being and the enjoyment of basic human rights’.266 In order to facilitate such protection, the Aarhus Convention obligates State parties to recognize and promote the rights of all concerned persons, including indigenous peoples, to have access to information and to participate in the decision-making of environmental matters.267 The various global and regional human rights treaty monitoring bodies and the regional human rights courts and commissions have also, on various occasions, confirmed the right to consultation and participation of indigenous peoples in their decisions, general comments, and concluding observations.268 These legal sources set certain minimum procedural requirements that should be satisfied for the process of consultation and participation of indig­ enous peoples to be valid and proper. First, the indigenous peoples concerned must be provided with accurate and adequate information on the proposed measures, including possible environmental and health risks identified by the environmental impact assessment studies.269 Such information must be made available as early as possible to enable them to meaningfully participate. Early 264 Ibid., Arts 6(1)(b)  & 7 (emphasis added). See also ILO CEACR (Observation 2010/81) (n 260), 8. 265 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), concluded at Aarhus on 25 June 1998, 2161 UNTS 447 (entered into force 30 October 2001). 266 Ibid., preamble recital 6 (emphasis added). 267 Ibid., Arts 3(9) and 6–9. For a detailed discussion, see A Boyle, ‘Human Rights and the Environment: Where Next?’ (2012) 23(3) European Journal of International Law 613, 621–626. 268 For example, see the following: HRC, General Comment No 23 (n 77), [7]; CESCR, Gen­ eral Comment No 21 (n 68), [36]; CERD Committee, General Recommendation No 23 (n 77), [4(d)]; IACtHR, Saramaka People (n 130), [133–137]; IACtHR, Xákmok Kásek Indigenous Community (n 130), [157]; AfComHPR, Endorois Case (n 64), [281, 282 & 297]; ACtHPR, Ogiek Case (n 66), [131]. To avoid repetition, the practices of treaty moni­ toring and regional human rights bodies with respect to procedural rights is discussed in Chapter 4 of this book dealing with marine space and marine resources. 269 Article 7(3) of ILO Convention 169 requires States not to grant resource development permits within indigenous peoples’ lands before independent and technically qualified

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information provides sufficient time for internal discussion within communi­ ties according to their own traditional decision-making processes and institu­ tions and allows time to provide proper feedback to the State.270 Second, the State must conduct the consultation with the legitimate representatives of the affected indigenous communities concerned (be they individuals or institu­ tions), and ‘not through structures imposed from outside the community’.271 Representatives are presumed to be legitimate only when they are chosen by the indigenous communities concerned.272 Third, the procedures of consulta­ tion should be culturally appropriate.273 This will depend on the national circumstances, the circumstances of the indigenous peoples concerned, and the nature of the proposed measures, which are the subject of the consulta­ tion process.274 Thus, an appropriate model of consultation must take these relevant factors into account and allow the indigenous peoples concerned to use their traditional methods and decision-making processes.275 Fourth, the consultation must be undertaken before any decision is reached and must be conducted in good faith with the objective of achieving an agreement or consent on the matter.276 A pro forma consultation or a simple information meeting after the decision is made does not constitute proper consultation since it does not give indigenous peoples any real opportunity to influence the decision.277 In sum, the right to consultation and participation of indigenous peoples in all matters affecting them is well-established in international human rights law instruments pertaining to indigenous peoples. The norm has also received widespread acceptance by various treaty monitoring bodies and regional human rights institutions. Taking this universal support into account, the IACtHR has concluded that the right to consultation and participation of indigenous peoples has acquired a status of a ‘general principle of interna­ tional law’.278 Commentators also agree with this conclusion.279

270 271 272 273 274 275 276 277 278 279

entities have conducted social and environmental impact assessment studies. Article 7(3) also requires that States involve the representatives of indigenous peoples in such studies. IACtHR, Saramaka People (n 131), [133]; AfComHPR, Endorois Case (n 64), [292]; IACtHR, Kichwa Indigenous Peoples (n 133), [180 & 208]. International Labour Office, A Manual (n 154), 19. UNDRIP (n 21), Art 18. ILO Convention 169 (n 80), Art 6; UNDRIP, ibid., Art 19. ILO CEACR (Observation 2010/81) (n 260), 9. IACtHR, Kichwa Indigenous Peoples (n 133), [165, 167, 177 & 201]. ILO Convention 169 (n 80), Art 6(2); UNDRIP (n 21), Arts 18, 19 & 32. ILO CEACR (Observation 2010/81) (n 260), 8–9. IACtHR, Kichwa Indigenous Peoples (n 133), [164]. B Clavero, ‘The Indigenous Rights of Participation and International Development Poli­ cies’ (2005) 22(1) Arizona Journal of International and Comparative Law 41, 50; J Anaya, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Land and Resources’ (2005) 22(1) Arizona Journal of International and Comparative Law 1, 7.

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6.1 Beyond consultation: the right to free, prior, and informed consent In recent years, a more stringent requirement of consultation has emerged in international law, namely the right to free, prior, and informed consent (FPIC). The right to FPIC can be understood as the right of indigenous peo­ ples to make free and informed choices about all matters that may signifi­ cantly affect them.280 The norm makes the consent of indigenous peoples an essential requirement for implementing certain proposed measures. The three elements – ‘free’, ‘prior’, and ‘informed’ – set the conditions for the validity of indigenous peoples’ consent and require: that consent is obtained through a process of consultation conducted without any form of coercion, intimi­ dation, or manipulation; that consent is obtained before passing a decision associated with the proposed activity or adopting a legislative measure; and that indigenous peoples have been provided with all objective and accurate information relating to the proposed measure in a manner and form under­ standable to them.281 Therefore, the main aim of FPIC is to make sure that indigenous peoples are not forced or threatened and that their consent is obtained freely and prior to the adoption or authorization of measures that may affect their fundamental rights. Nonetheless, the scope of application of FPIC – i.e., with respect to which matters the consent of indigenous peoples is required – is controversial and subject to conflicting views. Some indigenous rights advocates consider consent as a mandatory requirement for all matters that may negatively affect the rights of indigenous peoples and that, without such consent, indigenous peoples have a right to veto the proposed activity.282 Others argue that FPIC could be under­ stood as having a dual purpose. It could mean a veto right for certain essential matters and a good faith consultation with the objective of obtaining consent (but without making such consent a prerequisite to making a decision) with respect to some other matters.283 This latter view has been widely adopted in contemporary international law and the practice of human rights bodies. 280 L Heinämäki, ‘Global Context – Arctic Importance: Free, Prior and Informed Consent, a New Paradigm in International Law Related to Indigenous Peoples’ in TM Herrmann and T Martin (eds), Indigenous Peoples’ Governance of Land and Protected Territories in the Arctic (Springer 2016) 209, 220. 281 EMRIP, Expert Mechanism Advice No 2 (2011): Indigenous Peoples and the Right to Par­ ticipate in Decision-making, UN Doc A/HRC/18/42, [25]. The CERD Committee criticized Mexico for its failure to meet the essential standards of FPIC. See CERD Committee, Con­ cluding Observation: Mexico, UN Doc CERD/C/MEX/CO/18–21 (19 September  2019), [20–21]. 282 PFII, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, UN Doc E/c.19/2005/3 (2005), [14]. 283 See M Barelli, ‘Free, Prior, and Informed Consent in the UNDRIP’ in J Hohmann and M Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A  Commentary (OUP 2018) 247–272.

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ILO Convention 169 recognizes the right to FPIC only in the context of the relocation of indigenous peoples from their lands. While Article 16(1) generally prohibits relocation, Article 16(2) provides that ‘[w]here the relo­ cation of [indigenous] peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent’. The second sentence of Article 16(2) goes on to state that ‘[w]here their consent cannot be obtained, such relocation shall take place only fol­ lowing appropriate procedures established by national laws and regulations’, including public inquiries that allow for the effective representation of the peoples concerned. This means that a State can proceed with the process of relocation in exceptional circumstances even if the indigenous peoples con­ cerned withhold their consent.284 Article 10 of the UNDRIP, on the other hand, introduces a more stringent standard than ILO Convention 169 by providing that ‘[n]o relocation shall take place without the free, prior, and informed consent of [the] indigenous peoples concerned’.285 This provision makes clear that measures that require the relocation of indigenous communities from their traditional lands can­ not be implemented without the consent of such indigenous communities. Similarly, Article 29(2) of the UNDRIP makes obtaining the consent of indig­ enous peoples a prerequisite for the disposal of hazardous substances within their lands and territories.286 The two provisions underscore the special cultural and spiritual relationship that indigenous peoples have with their ancestral lands, as well as the devastating negative effect that relocation or hazardous materials may have on their lives.287 These provisions, however, are not absolute and should be read in light of Article 46 of UNDRIP, which puts general limitations on the application of the provisions of UNDRIP. Particularly, Article 46(2) provides that the exercise of rights set forth in the Declaration shall be subject to: such limitations as are determined by law and in accordance with human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.288

284 This (permissive) provision should, however, be interpreted restrictively to be consistent with the general prohibition of relocation recognized under Article 16(1) of ILO Conven­ tion 169. 285 UNDRIP (n 21), Art 10 (emphasis added). 286 Article 29(2) of UNDRIP stipulates that ‘States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands and territories of indigenous peoples without their free, prior and informed consent’. 287 See generally M Barelli, Free, Prior, and Informed Consent (n 283), 255. 288 UNDRIP (n 21), Art 46(2) (emphasis added).

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While this provision may permit States to relocate indigenous peoples from or dispose of hazardous materials on their lands without obtaining their con­ sent, such powers are strictly circumscribed. A  State may take such meas­ ures only after exhausting all efforts to obtain the consent of the concerned indigenous peoples and after proving that the previously mentioned stringent conditions (italicized in the quotation) are met.289 As such, the UNDRIP pro­ gressively develops and refines the meaning and scope of FPIC recognized under Article 16(2) of ILO Convention 169. Treaty monitoring bodies and regional human rights institutions have endorsed the UNDRIP’s formulation of the right to FPIC in the context of the previously mentioned two circumstances. For example, the CESCR con­ cluded that a State has a duty to respect the principle of FPIC of indigenous peoples ‘in all matters covered by their right [to lands]’, particularly relating to its duty to return them to their lands if they were removed ‘without their free and informed consent’.290 The CESCR has repeated this position in its Concluding Observations on reports of a number of States.291 The CERD Committee also calls upon State parties to ensure that no decisions that result in the removal of indigenous peoples from their traditional lands ‘are taken without their informed consent’.292 Similarly, in Endorois, the AfComHPR concluded that in the context of relocation, the threshold of consultation ‘is especially stringent in favor of indigenous peoples, as it . . . requires that consent be accorded’.293 Outside the context of relocation and disposal of hazardous waste on indigenous peoples’ lands, Articles 19 and 32(2) of the UNDRIP generally requires that States consult indigenous peoples ‘in order to obtain their [FPIC]’ before adopting or implementing ‘legislative or administrative measures that may affect them’, or ‘prior to the approval of any project affecting their lands or territories, and other resources’.294 These provisions are ambiguous as to whether the expression ‘consult in order to obtain’ requires States to obtain the consent of indigenous peoples or merely to seek but not necessarily obtain such consent. However, the provisions have been interpreted flexibly, in light

289 See generally M Barelli, Free, Prior, and Informed Consent (n 283), 255.

290 CESCR, General Comment No 21 (n 68), [36 & 37].

291 See, for example: CESCR, Concluding Observation: Colombia, UN Doc E/C.12/COL/CO/5

(7 June 2010), [9]; CESCR, Concluding Observation: New Zealand, UN Doc E/C.12/NZL/ CO/3 (31 May 2012), [11]; CESCR, Concluding Observation: Finland, UN Doc E/C.12/ FIN/CO/6 (17 December 2014), [9(b)]; CESCR, Concluding Observation: Paraguay, UN Doc E/C.12/PRY/CO/6 (20 March 2014), [6(a)]; CESCR, Concluding Observation: Chile, UN Doc E/C.12/CHL/CO/4 (7 July 2015), [8(b)]; CESCR, Concluding Observation: Phil­ ippines, UN Doc E/C.12/PHL/CO/5–6 (26 October 2016), [13(d) & 14(a & e)]. 292 CERD Committee, General Recommendation 23 (n 77), [4(d)]. 293 AfComHPR, Endorois Case (n 64), [226] (emphasis added). 294 UNDRIP (n 21), Arts 19 & 32(2). Arts 23(2) & 29(4) of ADRIP replicate Arts 19 & 32(2) of UNDRIP respectively.

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of the general spirit and normative character of UNDRIP, as requiring States to obtain the FPIC of indigenous peoples in certain circumstances, depending on the nature and potential impact of the proposed measures on the rights of the indigenous peoples concerned.295 The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) notes that the consent of indigenous peoples is mandatory with respect to ‘matters of fundamental importance for their rights, survival, dignity and well-being’.296 The former special rapporteur on the rights of indigenous peoples similarly argues that FPIC is required ‘where the rights implicated are essential to the survival of indigenous groups as distinct peoples and the foreseen impacts on the exercise of the rights are significant’.297 These views have also been endorsed in relevant case law. In Saramaka, the IACtHR held that with regards to large-scale development or investment projects that could have a major impact within Saramaka territory, the State has a duty, not only to consult with the Saramakas, but also to obtain their free, prior and informed con­ sent, according to their customs and traditions.298 The requirement of consent applies equally when the cumulative effect of a number of small-scale projects would resemble that of a large-scale pro­ ject.299 In Endorois, the AfComHPR repeated the conclusions of the IACtHR in identical terms.300 Thus, the IACtHR and the AfComHPR clearly link the requirement of consent with projects that cause a ‘major impact’ on the terri­ tories of indigenous communities. In Poma Poma, the HRC similarly upheld the requirement of FPIC with respect to measures that would ‘substantially compromise or interfere with the culturally significant economic activities of . . . indigenous communit[ies]’.301 The fulfillment of these tests should be assessed on a case-by-case basis. With respect to measures whose impact falls short of the previously men­ tioned standards (tests), the requirement of FPIC may simply be understood as consultations in good faith in an effort to, but not necessarily, obtain the consent of the indigenous peoples concerned – a view consistent with the literal interpretation of Articles 19 and 32 of the UNDRIP.302 Articles 6 and 15 295 J Anaya, Indigenous Peoples’ Participatory Rights (n 279), 7 & 16.

296 EMRIP, Expert Mechanism Advice No 2 (2011) (n 281), [22] (emphasis added).

297 Report of Special Rapporteur on the Rights of Indigenous Peoples, J Anaya (6 July 2012),

A/HRC/21/47, [65]. 298 IACtHR, Saramaka People (n 131), [134] (emphasis added). 299 Ibid., [41]. 300 AfComHPR, Endorois Case (n 64), [291]. 301 HRC, Poma Poma (n 121), [7.6] (emphasis added). 302 See EMRIP, ‘Follow-Up Report on Indigenous Peoples and the Right to Participation in Decision-Making, with a Focus on Extractive Industries’, UN Doc A/HRC/21/55 (August 2012), [4].

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of ILO Convention 169 – which requires that States undertake consultations ‘with the objective of achieving agreement or consent’ – should also be read in this light.303 This flexible approach assists in providing effective protection of indigenous peoples’ fundamental rights by limiting the power of States to indiscriminately adopt legislative measures or initiate projects that may have serious negative consequences on the lives of indigenous peoples. In conclusion, while ILO Convention 169 explicitly requires State parties to obtain the FPIC of indigenous peoples only in the context of relocation, the UNDRIP expressly recognizes the right to FPIC both with respect to relo­ cation and disposal of hazardous waste into indigenous lands. The UNDRIP also limits – by imposing stringent conditions – the circumstances by which a State may take such measures without obtaining the FPIC of indigenous peoples. In other contexts, the nature and content of the substantive rights at stake determine whether States are required to obtain the FPIC of indige­ nous peoples before adopting measures.304 Treaty bodies and regional human rights institutions have clearly adopted this flexible sliding-scale approach. Several States have also followed the same approach of recognizing the right to FPIC in their legislation and court decisions.305 That said, there is no univer­ sal consensus as to whether the right to FPIC has crystalized into a norm of customary international law. 7. Conclusion This chapter has discussed the core human rights norms relevant to the rights of indigenous peoples relating to lands and natural resources, namely the right to self-determination, the right to culture, the right to property, the right to non-discrimination, as well as the right to consultation and participa­ tion. These norms recognize indigenous peoples’ rights to lands and natural resources, put substantive limits on the power of States to encroach on these rights, impose positive obligations on States to protect these rights, and pro­ vide procedural safeguards to enable indigenous peoples to be consulted and participate in decisions that may affect them. Put differently, these norms both protect the core substantive rights and recognize consultative and par­ ticipatory engagement of indigenous peoples in matters that may affect them. Although those norms are recognized in and derive from the entire set of human rights law instruments, they are not formulated in identical terms in the general human rights instruments and indigenous-specific instruments. 303 This is consistent with Article 35 of ILO Convention 169, which stipulates that the Con­ vention does not prevent indigenous peoples from enjoying more favorable rights that may arise from other instruments. 304 J Anaya, Indigenous Peoples’ Participatory Rights (n 279), 7, 16. 305 For a detailed discussion of State practice on the right to FPIC, see M Barelli, Free, Prior, and Informed Consent (n 283), 265–267.

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However, UN treaty monitoring bodies and regional human rights courts and commissions have adopted different methodologies of interpreting the general norms to address specific problems and the distinctive interests of indigenous peoples over their traditional lands and natural resources. These international and regional human rights bodies not only position indigenous rights within existing general global and regional human rights instruments but also have adapted and expanded the scope of these general norms by progressively interpreting and cross-fertilizing them with indigenous-specific norms. Particularly, these bodies emphasize the need to recognize the land and natural resource rights of indigenous peoples in accordance with their specific features recognized under their own customary laws – such as the collective/communal aspect of their relationship with lands, territories, and resources. In this regard, contemporary international human rights law and jurisprudence have come ‘some way to reversing international law’s histori­ cal role as a colonial tool for the dispossession of indigenous peoples’ lands, territories, and resources’.306

306 C Charters, ‘Indigenous Peoples’ Rights to Lands, Territories, and Resources in the UNDRIP: Articles 10, 25, 26, and 27’ in J Hohmann and M Weller (eds), The UN Declara­ tion on the Rights of Indigenous Peoples: A Commentary (OUP 2018) 424.

Chapter 4

Application of international human rights law to the rights of indigenous peoples in relation to marine space and marine resources

1. Introduction As Chapter 1 of this book demonstrates, indigenous peoples have a strong relationship with their traditional lands, territories, and natural resources, including marine space and marine living resources (MLRs). The seas and oceans not only provide a vital source of food and economic security for indigenous peoples living along coastlines but also shape their cultural iden­ tity and spiritual values. Put simply, the use of marine space and MLRs are indispensable for the continued existence of coastal indigenous peoples as culturally distinct peoples. Building on Chapter 3, this chapter explores the extent to which international human rights law recognizes indigenous peo­ ples’ customary rights to the marine space and associated resources through an assessment of the general and indigenous-specific human rights instru­ ments, relevant case law, and practices of treaty monitoring bodies.1 Section 2 establishes that human rights law applies equally to marine space as well as to land territory. Section  3 examines specific human rights norms relating to traditional ‘lands’ and ‘natural resources’ and considers how they might apply to the recognition and protection of the customary rights of indigenous peoples to marine space and MLRs. Section 4 provides concluding remarks. 2. Applicability of human rights law to marine space The issue of the application of human rights law to ocean space concerns the territorial limits of the application of human rights law treaties. The territo­ rial scope of a treaty2 is determined by the parties to the treaty. Some human 1 The author would like to mention that a modified and shorter version of this Chapter has been published in S Allen, N Bankes and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) as ‘International Human Rights Law and the Rights of Indigenous Peoples in Relation to Marine Space and Marine Resources’. 2 The territorial scope of a treaty ‘signifies the territories which the parties have purported to bind by the treaty and which, therefore, are the territories affected by the rights and obligations

DOI: 10.4324/9781003242772-6

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rights treaties contain a separate provision dealing with their spatial scope of application. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) stipulates that ‘[e]ach State party . . . undertakes to respect and to ensure [the rights contained in the Covenant] to all individuals within its territory and subject to its jurisdiction’.3 The European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR) similarly apply to all persons ‘within’ or ‘subject’ to the ‘[state par­ ties’] jurisdiction’.4 The ordinary meaning of the italicized terms unequivo­ cally confirm that these treaties apply within the parties’ national territorial limits.5 With respect to ‘freestanding’ treaties – treaties that do not contain a territorial scope clause6 – Article 29 of the Vienna Convention on the Law of Treaties (VCLT) provides a general rule regarding their spatial scope of appli­ cation. It provides that ‘unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of

3

4

5

6

set up by the treaty’ (see International Law Commission (ILC), Third Report on the Law of Treaties, Doc A/CN.4/167 and Add. 1–3, H Waldock (Special Rapporteur), in the Yearbook of the International Law Commission (Volume II, 1964), 12). International Covenant on Civil and Political Rights (ICCPR), concluded at New York on 16 December  1966, 999 UNTS 171 (entered into force 23 March  1976), Art 2(1) (empha­ sis added). The Optional Protocol to the ICCPR similarly uses the expression ‘individuals subject to its jurisdiction’ in delimiting the competence of the HRC to consider communica­ tions from individuals. Optional Protocol to the International Covenant on Civil and Political Rights, concluded at New York on 16 December 1966, 999 UNTS 71 (entered into force 23 March 1976), Art 1. European Convention on Human Rights: Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), adopted at Rome on 4 November 1950, 213 UNTS 2 (entered into force 3 September 1953), Art 1; and American Convention on Human Rights: ‘Pact of San Jose, Costa Rica’ (ACHR), signed at San Jose on 22 November 1969, 1144 UNTS 143 (entered into force 18 July 1978), Art 1(1). Emphasis added. See Human Rights Committee (HRC), General Comment No 31, ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, CCPR/C/21/Rev.1/Add. 13 (2004); Issa and Others v Turkey, European Court of Human Rights (ECtHR) (Judgement) [2004], Appli­ cation No 31821/96 (16 November 2004); and Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgement) [2005] ICJ Rep 168. For example, the following human rights instruments do not contain any specific provision dealing with their territorial scope of application: International Covenant on Economic, Social, and Cultural Rights (ICESCR), concluded at New York on 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976); International Convention on the Elimination of All forms of Racial Discrimination (CERD Convention), concluded at New York on 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); African (Banjul) Char­ ter on Human and Peoples’ Rights, concluded at Nairobi on 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986); Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169), concluded at Geneva on 27 June  1989, 1650 UNTS 383 (entered into force 5 September  1991); and United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), UN General Assembly Resolution 61/295 (adopted 13 September 2007).

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its entire territory’.7 The intention of the parties can be ascertained not only from the terms of the treaty but also in other ways outside of the treaty, such as if a State party makes a declaration upon signature or ratification or enters reservations as to the territorial scope of the treaty.8 In the absence of any such indication of the party’s intention, the treaty is presumed to apply throughout the State’s territorial limits. The territorial limits of a coastal/ archipelagic State include its internal waters, the territorial sea, and archipe­ lagic waters.9 This means that human rights law applies within these mari­ time zones in the same manner as land territories. The term ‘jurisdiction’ however, has a broader meaning. It includes the exercise of authority or effective control over an area or persons.10 Thus, human rights law also applies within maritime zones beyond a State’s territo­ rial limit within which a State exercises jurisdiction, i.e., within the exclusive economic zone (EEZ) and on the high seas, based on the principle of ‘extra­ territorial application of human rights law’.11 A State exercises ‘jurisdiction’ on the EEZ and high seas in either of the following three circumstances. First, coastal States have exclusive sovereign rights and jurisdiction over the natu­ ral resources of the EEZ; thus, they have jurisdiction over persons engaged in resource exploitation operations (i.e., control over individuals working on exploration vessels or drilling and production rigs and platforms).12 Second, a flag State exercises exclusive ‘jurisdiction’ over the activities of vessels fly­ ing its flag, as well as over all individuals aboard the vessels, including crew 7 Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Art 29 (emphasis added). Due to the unanimous acceptance of Article 29 of the VCLT by States at the Vienna Conference and their affirmative subsequent practice, the provision reflects customary international law. For a detailed commen­ tary on Article 29 of the VCLT, see ME Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff 2009) 392–393; ILC, Draft Articles on the Law of Treaties with Commentaries (Yearbook of the International Law Commission 1966) 213. 8 ME Villiger, ibid., 392. 9 United Nations Convention on the Law of the Sea (LOSC), concluded at Montego Bay on 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994), Arts 2(1) & 49. For a detailed discussion, see Chapter 5 of this book. 10 See HRC, General Comment No 31 (n 5), [10]; HRC, Lopez Burgos v Uruguay, Communi­ cation No R.12/52, UN Doc Supp. No 40 (A/36/40) at 176 (29 July 1981), [12.3]; Al-Skeini and Others v the United Kingdom, ECtHR (Judgement) [2011] Application No 55721/07 (17 July 2011), [130–150]; Legal Consequences of the Construction of a Wall in the Occu­ pied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136; and Case Concerning Armed Activities on the Territory of the Congo (n 5). 11 See K Neri, ‘The Applicability of the European Convention on Human Rights to State Enforcement and Control at Sea’ in G Andreone (ed.), Jurisdiction and Control at Sea: Some Environmental and Security Issues (Giannini Editore 2014) 153–168; D Guilfoyle, ‘Human Rights Issues and Non-Flag State Boarding of Suspect Ships in International Waters’ in CR Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (Martinus Nijhoff 2011) 81–104. 12 LOSC (n 9), Art 56.

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members, from the moment of boarding throughout the whole voyage.13 As Lanham observes, ‘a ship is essentially construed as a floating island for the purpose of jurisdiction’.14 Third, a non-flag State exercises jurisdiction when it boards a foreign ship on the EEZ and high seas to take enforcement measures pursuant to Articles 73, 110, and 111 of the United Nations Convention on the Law of the Sea (LOSC), or if it is expressly authorized to do so by the flag State concerned.15 While exercising jurisdiction within these maritime zones on the basis of either of the three grounds mentioned previously, States (be it coastal or flag State) have a corresponding obligation to observe the human rights of persons under their effective control. For example, coastal States authorizing resource exploitation projects, such as oil and gas activities, in the EEZ have a primary duty to protect the human rights of peoples likely to be affected by the exploitation operations, including persons involved in the resource exploitation project as well as the nearby communities. The coastal State’s obligation in this respect is a due diligence obligation, i.e., the obligation to take all appropriate measures to ensure that the human rights of individuals/communities are not affected by resource extraction activities undertaken within its EEZ through adequate regulation and control of the project, and pre- and post-licensing measures.16 Judicial authority also supports the application of human rights law to marine space. For example, in Women on Waves and Others v. Portugal, the European Court of Human Rights (ECtHR) found Portugal in violation of the freedom of expression recognized under Article 10 of the ECHR by ban­ ning the applicants (employees of the Dutch non-governmental organization (NGO)) from conducting an awareness campaign on family planning and sex­ ual health issues aboard their own vessel (Borndiep) in Portugal’s territorial sea.17 Another example is the case of Medvedyev and Others v. France,18 where 13 Ibid., Arts 58(2) & 92(1). See also K Neri, The Applicability of the European Convention on Human Rights (n 11), 157–159. 14 Quoated from S de Bont, ‘Prosecuting Pirates and Upholding Human Rights Law: Taking Perspective’ (2010) One Earth Future Foundation Working Paper 1, 17. 15 A flag State may authorize a non-flag State to board its flag vessel and take necessary enforce­ ment measures either pursuant to its commitment in specific treaties concluded for specific purpose as stipulated under Article 110(1) of the LOSC, or through a diplomatic note of the flag State concerned. See D Guilfoyle, Human Rights Issues and Non-Flag State Boarding (n 11). 16 For a detailed discussion, see K Neri, The Applicability of the European Convention on Human Rights (n 11), 155–157; RL Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Martinus Nijhoff 2014) 57, 63. 17 Women on Waves and Others v Portugal, ECtHR (Judgement) [2009], Application No 31276/05 (3 February 2009), in French Language only. For a discussion of the case, see T Treves, ‘Human Rights and the Law of the Sea’ (2010) 28 Berkeley Journal of International Law 1, 10–11. 18 Medvedyev and Others v France, ECtHR (Judgement) [2010], Application No 3394/03 (29 March 2010).

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French authorities, with the consent of Cambodia, interdicted and boarded a Cambodian commercial vessel (The Winner) suspected of drug smuggling off the coast of Cape Verde. Here, the ECtHR concluded that ‘since France had exercised full and exclusive control over The Winner and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within France’s jurisdiction for the purpose of Article 1 of the Convention’.19 On the merits, the ECtHR held France responsible for the violation of the human rights of the applicants (crew members) by detaining them for the 13-day voyage to the French port under the control of its military personnel.20 Simi­ larly, in Hirsi Jamaa and Others v Italy21 (where Italy intercepted 13 Somalian and Eritrean migrants traveling from Libya on the high seas, transferred the migrants onto the Italian military ships, returned them back to the port of Tripoli, and handed them over to the Libyan authorities), the ECtHR found Italy in violation of its human rights obligations under the ECHR.22 In January 2022, a new initiative that specifically deals with the protec­ tion of human rights in the marine space, the Geneva Declaration on Human Rights at Sea (GDHRAS),23 was adopted by the NGO Human Rights at Sea (HRAS).24 The Declaration underlines that compared with land territories, 19 Ibid., [67]. 20 Ibid. [see, in particular, 64 & 67]. For a detailed discussion of the case, see B Wilson, ‘Human Rights and Maritime Law Enforcement’ (2016) 52(2) Stanford Journal of International Law 243 [see in particular at 261–268]; E Papastavridis, ‘European Convention on Human Rights and the Law of the Sea: The Strasbourg Court in Unchartered Waters’ in M Fitzmau­ rice and P Merkouris (eds), The Interpretation and Application of the European Convention on Human Rights: Legal and Practical Implications (Martinus Nijhoff/Brill 2012) 115. 21 Hirsi Jamaa and Others v Italy, ECtHR (Judgement) [2012], Application No 27765/09 (23 February 2012). In this case, the ECtHR concluded that Italy exercised jurisdiction because ‘in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion’ [81 & 219(3)]. 22 Ibid., [see, in particular, 74, 77, 81–84, 219 (3)]. For a detailed discussion of the case, see M Pallis, ‘Obligations of States Towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes’ (2002) 14 International Journal of Refugee Law 329; KS O’Brien, ‘Refugees on the High Seas: International Refugee Law Solutions to the Law of the Sea Prob­ lem’ (2011) 3(2) Goettingen Journal of International Law 715; and VP Tzevelekos and EK Proukaki, ‘Migrants at Sea: A Duty of Plural States to Protect (Extraterritorially)?’ (2017) 86 Nordic Journal of International Law 427. 23 Geneva Declaration on Human Rights at Sea (GDHRAS), adopted by the Human Rights at Sea (January  2022), available at: www.humanrightsatsea.org/sites/default/files/media­ files/2022-02/GDHRAS_Jan_2022_Final_online_version_sp%20%281%29.pdf (accessed September 2023). 24 Human Rights at Sea is a London-based NGO that works exclusively on raising global awareness of a wide range of human rights abuses at sea by conducting research, investiga­ tions, and advocacy. Available at: www.humanrightsatsea.org/

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human rights abuses occurring ‘on the oceans and out of sight of land’ are not properly controlled not only due to geographical reasons but also because States do not pay adequate attention.25 According to the Declaration, the ‘concept of human rights at sea’ rests on four fundamental principles. First, ‘[h]uman rights are universal; they apply at sea, as they do on land’.26 Second, ‘[a]ll persons at sea, without any distinction, are entitled to their human rights’.27 Third, ‘[t]here are no maritime specific reasons for denying human rights at sea’.28 While acknowledging that the seas are a challenging environment and have unique characteristics that demand unique responses, the Declaration stressed that ‘this emphatically does not mean that human rights can be compromised in any way’.29 Fourth, ‘[a]ll human rights estab­ lished under both treaty and customary international law must be respected at sea’.30 The Declaration also includes three annexes that provide detailed information on various issues – namely evidence of human rights abuses at sea (Annex A), a list of applicable global and regional human rights instru­ ments and specific norms at sea (Annex B), and guidelines for promoting compliance with human rights at sea (Annex C).31 It is, however, evident that the Declaration does not introduce new human rights norms applicable to marine space; it rather reflects existing and established international law and principles.32 Although the Declaration is not a legally binding instrument, it plays a useful role in raising global awareness of human rights abuses at sea33 and re-emphasizes that States (flag States, coastal States, and port States) should pay particular attention to the protection of human rights in marine areas.34 It thus has the potential to shape States’ human rights policies.35 In conclusion, human rights law applies both on the land and marine terri­ tories where a State has sovereignty or exercises ‘jurisdiction’. This is consistent

25 26 27 28 29 30 31

32 33 34 35

GDHRAS, 3 and Annex A.

Ibid., 4.

Ibid.

Ibid.

Ibid., 3.

Ibid., 4.

The guidelines provided under Annex C are very detailed and aim to assist States (including

port States, coastal States, and flag States) in taking measures to ensure compliance with human rights in the various maritime zones. The guidelines are also addressed to inter­ national organizations, corporate entities, non-governmental and civil society entities, and individuals involved in ensuring compliance with human rights at sea (ibid., 13). As such, the guidelines articulate the possible ways in which the law of the sea and international human rights law could operate in a complimentary way. Ibid., 4.

Ibid., 4 and Annex A.

Ibid., 4.

For a detailed discussion on the content of the Declaration, see N Klein, ‘Geneva Declaration

on Human Rights at Sea: An Endeavor to Connect Law of the Sea and International Human Rights Law’ (2022) 53(2–3) Ocean Development and International Law 232.

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with the universal character of human rights, whereby all States are bound ‘to promote universal respect for, and observance of, human rights and freedoms’36 without being ‘parceled off by territory on the checkerboard of geography’.37 This general proposition of the applicability of human rights applies to all peo­ ples, including indigenous peoples. Thus, a coastal State is dutybound to respect the human rights of indigenous peoples falling under its territory or jurisdiction. 3. Human rights norms applicable to the rights of indigenous peoples to marine space and marine resources Chapter  3 of this book discussed the core norms of international human rights law that are relevant to the rights of indigenous peoples to traditional lands and natural resources in general. The following parts of this chapter specifically examine the application of those norms to the rights of indig­ enous peoples in relation to marine space and marine resources. 3.1 The right to self-determination: an overarching right to the governance of marine space and resources The right to self-determination is the center of indigenous peoples’ rights. It is recognized under the various general and indigenous-specific human rights instruments, as well as in the practices of the relevant treaty moni­ toring bodies and international courts and tribunals. Particularly, the eco­ nomic dimension of the right to self-determination recognizes the right of indigenous peoples to their traditional lands and to freely dispose of their natural resources ‘for their own ends’, including to fulfill their means of sub­ sistence.38 This right applies equally to indigenous peoples’ rights to marine areas and MLRs. While none of the relevant human rights instruments define the term ‘natural resources’, the term is broad, and its ordinary meaning must extend to marine natural resources. The dissenting opinion of Judges Kateka and Wolfrum in the Chagos MPA Arbitration is instructive in this regard. The two arbitrators first examined whether the detachment of the Chagos Archipelago from Mauritius ‘was contrary to the legal principles of decolonization as referred to in UNGA Res 1514 and/or the principle of self­ determination’.39 They opined that the separation of the Chagos Archipelago 36 Charter of the United Nations, signed at San Francisco on 26 June 1945, 892 UNTS 119 (entered into force 24 October 1945), Art 1(3); ICCPR (n 3), preamble, recital 4; ICESCR (n 6), preamble, recital 4; ECHR (n 4), preamble, recital 2. 37 Concurring opinion of Judge Bonello in the case of Al-Skeini (n 9), [9]. 38 See Chapter 3 for a detailed discussion of this issue. 39 Chagos Arbitration (The Republic of Mauritius v The United Kingdom of Great Brit­ ain and Northern Ireland), Arbitral Tribunal Constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea, PCA, Award on the Merits (18

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from the Mauritius colonial unit violated the territorial integrity of Mauritius and was contrary to international law rules concerning decolonization.40 On the basis of this finding, they concluded that the establishment of the marine protected area (MPA) by the United Kingdom (UK) without consultation with Mauritius and the consequent prohibition of fishing in the waters of the Chagos Archipelago by Mauritian nationals was in violation of the right to self-determination of Mauritius in general and the Chagos Islanders in particular.41 The 2019 Advisory Opinion of the International Court of Justice (ICJ) on the legal consequences of the separation of the Chagos Archipelago has affirmed the previously mentioned view. The ICJ found that the detachment of the Chagos Archipelago from Mauritius was unlawful,42 and as a result, the ‘process of decolonization of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968’.43 The Court then concluded that the UK is ‘under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible’ to enable ‘Mauritius to complete the decolonization of its territory in a manner consistent with the rights of peoples to self-determination’.44 The ICJ’s conclusion on the specific issue of the resettlement of the Chagos Islanders is of particular relevance here. It held that the issue of resettlement relates ‘to the protection of the human rights of those concerned, which should be addressed by the General Assembly during the completion of the decolonization of Mauritius’.45 In so holding, the ICJ broadly framed the right to resettlement of the Chagosians on the Archipelago and the use of the associated natural resources, which includes marine resources, within the ambit of international human rights law in general and the right to self-determination in particular.46 It is worth noting here that the ICJ’s Advisory Opinion has played a significant role in bringing the UK and Mauritius to enter into negotiations to resolve all their

March  2015), Dissention and Concurring Opinion of Judge James Kateka and Judge Rüdiger Wolfrum, [70]. 40 Ibid., Dissention and Concurring Opinion of Judge James Kateka and Judge Rüdiger Wolfrum, [72]. 41 Ibid., [see, in particular, 69–74]. 42 The ICJ particularly reviewed the circumstances in which the Mauritius ministers agreed to the detachment of the Archipelago under the Lancaster House Agreement and concluded that ‘this detachment was not based on the free and genuine expression of the will of the people concerned’ (Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] General List No 169, [172]. 43 Ibid., [174]. 44 Ibid., [178]. 45 Ibid., [181]. 46 See also generally A  Schwebel, ‘International Law and Indigenous Peoples’ Rights: What Is Next for the Chagossians?’ in S Allen and C Monaghan (eds), Fifty Years of the British Indian Ocean Territory: Legal Perspective (Springer 2018) 319–357.

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outstanding disputes, including sovereignty over the Chagos Archipelago and the resettlement of the Chagos islanders.47 In short, the right to economic self-determination entitles indigenous peo­ ples to own or possess certain marine areas, which they occupy or use as part of their traditional territories, or to harvest the associated MLRs, includ­ ing marine mammals, on a non-exclusive basis to satisfy their subsistence needs.48 The right also entitles indigenous peoples to actively participate in the conservation and management of marine resources. 3.2 Access to marine areas and harvesting of MLRs as a cultural right As discussed in Chapter 3, the right to culture is a widely recognized human right incorporated in various general and indigenous-specific human rights instruments. The cultural rights provisions of the general global and regional human rights instruments have been evolutively interpreted and applied by their respective treaty monitoring bodies and regional human rights courts and commissions to recognize and protect the culture of indigenous peoples, both in its individual and collective dimensions. These human rights bod­ ies, in a number of cases dealing with indigenous communities, have also adopted a broad understanding of culture, which includes a particular way of life associated with the use of lands and natural resources – the material basis of culture.49 The marine space and marine resources form a basis for, and are essen­ tial for maintaining, the cultural and spiritual fabrics of coastal indigenous peoples. Thus, there is no reason to confine the cultural rights provisions of general and indigenous-specific human rights instruments, as well as the con­ clusions of the relevant human rights treaty monitoring bodies and human rights courts and commissions on the material basis of culture to land terri­ tory, and it follows that those general provisions and conclusions are equally applicable to marine space and marine resources.50 Indeed, the International Labour Organization (ILO) Convention 169 expressly recognizes the fishing

47 For developments on this issue, see ‘British Indian Ocean Territory: UK to Negotiate Sover­ eignty 2022/23’, available at: https://commonslibrary.parliament.uk/research-briefings/cbp­ 9673/ (accessed September 2023). 48 For a discussion of the rights of indigenous peoples to harvest marine mammals, see Chap­ ter 7 of this book. 49 For a detailed discussion, see Chapter 3 of this book. 50 C Smith and M Dodson, and Skogvang share this view. See C Smith and M Dodson (Special Rapporteurs), ‘Report on Indigenous Fishing Rights in the Seas with Case Studies from Australia and Norway’, Permanent Forum on Indigenous Issues, UN Doc E/c.19/2010/2 (2010); and SF Skogvang, ‘Local Community Right to Fish: A Sami Perspective’ in C Allard and SF Skogvang (eds), Indigenous Rights in Scandinavia: Autonomous Sami Law (Ashgate Publishing 2015) 127, 136.

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and hunting practices of indigenous peoples, without drawing a distinction between freshwater and saltwater fishing, as an integral part of indigenous peoples’ culture. Article 23(1) specifically provides that: Handicrafts, rural and community-based industries, and subsistence econ­ omy and traditional activities of the [indigenous] peoples concerned, such as hunting, fishing, trapping, and gathering, shall be recognized as impor­ tant factors in the maintenance of their cultures and their economic self­ reliance and development. Governments shall, with the participation of these peoples and whenever appropriate, ensure that these activities are strengthened and promoted.51 This provision affirms not only that hunting and fishing practices of indige­ nous peoples are traditional activities that form the basis for their subsistence economy but also that those activities are indispensable for the maintenance and continued development of their cultures. The ILO Convention 169, thus, obliges State parties to recognize such activities as part of indigenous peo­ ples’ cultural rights and to take positive measures to strengthen and promote them.52 Similarly, as discussed further on in more detail, Article 25 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) expressly recognizes that coastal indigenous peoples have a distinctive cul­ tural and spiritual relationship with the sea and that their rights to natural resources include marine resources. The Human Rights Committee (HRC) further confirmed this in General Comment No. 23 and its views in Apirana Mahuika, which deals specifically with the rights of the Maori in relation to marine fisheries. As the HRC noted: It is undisputed that the authors are members of a minority within the meaning of article 27 of the Covenant; it is further undisputed that the use and control of fisheries is an essential element of their culture. In this context, the Commit­ tee recalls that economic activities may come within the ambit of article 27, if they are an essential element of the culture of a community. The recognition of Maori rights in respect of fisheries by the Treaty of Waitangi confirms that the exercise of these rights is a significant part of Maori culture.53

51 ILO Convention 169 (n 6), Art 23(1) (emphasis added).

52 Ibid., Art 23(1)(2).

53 HRC, Apirana Mahuika et al v New Zealand, Communication No 547/1993, UN Doc

CCPR/C/70/D/547/1993 (27 October 2000), [9.3] (emphasis added). See also more gener­ ally HRC, General Comment No 23(50), UN Doc CCPR/C/21/Rev.1/Add.5 (1994), [7]. For a discussion of national developments relating to Maori’s right to marine resources in New Zealand, see A  Erueti, ‘New Zealand/Aotearoa and the Rights of Māori to Natural Resources in Marine Areas’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indig­ enous Peoples in Marine Areas (Hart 2019) 237–249.

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The HRC made clear that it is the importance of the fishing activity to the cultural identity of indigenous peoples, rather than the location of harvest (whether from freshwater or saltwater), that must be assessed in connection with the application of Article 27. The HRC affirmed this understanding in its 2022 View on Daniel Billy et al. v. Australia, where it accepted the allega­ tion of Torres Strait Islanders that the impacts of climate change caused by Australia’s failure to take adequate mitigation and adaptation measures ‘have eroded their traditional lands and natural resources that they use for tradi­ tional fishing . . . and for cultural ceremonies that can only be performed on the islands’.54 The HRC concluded that Australia’s failure to adopt timely adequate adaptation measures to protect the authors’ collective ability to maintain their traditional way of life, to trans­ mit to their children and future generations their culture and traditions and use of land and sea resources discloses a violation of [its] positive obligation to protect the authors’ right to enjoy their . . . culture.55 The HRC also emphasized the cultural value of marine areas and resources in its 2018 Concluding Observation on Norway regarding the Sami peoples’ fish­ ing rights in the sea (coast of Finnmark). The HRC criticized Norway for its failure to follow the 2008 proposals of the Coastal Fishing Committee (CFC) regarding the recognition of the rights of the coastal Sami people to marine resources as a material basis of their culture, as well as for not adopting a strong law ensuring the protection of those rights.56 The HRC recommended the State party follow up on the CFC’s proposals and enhance the legal framework to ensure that the Sami customary ‘fishing rights [in the sea] are recognized by law’.57 The Committee on the Elimination of Racial Discrimination (CERD Committee)58 and the Special Rapporteur on the Rights of Indigenous Peoples59 have also provided similar criticisms and recommendations to Norway.60 54 HRC, Daniel Billy et al v Australia, Communication No. 3624/2019, UN Doc CCPR/ C/135/D/3624/2016 (22 September 2022), [8.14]. Emphasis added. 55 Ibid. (emphasis added). 56 HRC, Concluding Observations on the Seventh Periodic Report of Norway, UN Doc CCPR/C/NOR/CO/7 (25 April 2018), [36]. 57 Ibid., [37(d)&(e)]. 58 CERD Committee, Concluding Observations on the Combined Twenty-Third and TwentyFourth Periodic Reports of Norway, UN Doc CERD/C/NOR/CO/23–24 (2 January 2019), [21(d)  & 22(e)]; CERD Committee, Concluding Observations on the Combined TwentyFirst and Twenty-Second Periodic Reports of Norway, UN Doc CERD/C/NOR/CO/21–22 (25 September 2015), [29 (d) and 30 (b) & (f)]. 59 Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Human Rights Situ­ ations of the Sami People in the Sápmi Region of Norway, Sweden and Finland, V Tauli-Corpuz, UN Doc A/HRC/33/42/Add 3 (9 August 2016), [27, 76–78]; Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Situation of the Sami People in the Sápmi Region of Norway, Sweden and Finland, J Anaya, UN Doc A/HRC/18/35/Add 2 (6 June 2011), [81]. 60 For a detailed discussion of the legal protection of coastal Sami culture and livelihood in Nor­ way, see Ø Ravna and L Kalak, ‘Legal Protection of Coastal Sami Culture and Livelihood

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The protection of the right to the material basis of culture extends not only to fishing practices by traditional means but also to practices that have been adapted to modern fishing technologies. In Apirana Mahuika, the HRC observes that ‘[t]he right to enjoy one’s culture cannot be deter­ mined in abstracto but has to be placed in context. In particular, Article 27 does not only protect traditional means of livelihood of minorities, but allows also for adaptation of those means to the modern way of life and ensuing technology’.61 The Committee on Economic, Social and Cultural Rights (CESCR) similarly observes that the right to take part in cultural life is closely related to the ‘right to enjoy the benefits of scientific progress and its applications’ recognized under Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).62 Such benefits of scien­ tific progress include, inter alia, the material results or products of scientific advancement, such as technological instruments, as well as the participation of indigenous peoples in scientific research activities and the incorporation of their traditional knowledge.63 In so concluding, the CESCR clearly recognizes the rights of indigenous peoples to use modern technologies in their natural­ resource-harvesting practices, including marine resources. The CERD Com­ mittee64 and the African Court on Human and Peoples’ Rights (ACtHPR)65 have similarly adopted a ‘non-static’ or ‘non-frozen’ view of culture. In short, the relevant human rights bodies have recognized that cultural practices may have evolved over centuries and that ‘the enjoyment of culture should not

61

62

63

64

65

in Norway’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 213–236. HRC, Apirana Mahuika (n 53), [9.4] (emphasis added). In Ilmari Länsmann, the HRC had similarly observed that the fact ‘that the authors may have adapted their methods of reindeer herding over the years and practice it with the help of modern technology does not prevent them from invoking article 27 of the Covenant’. See HRC, Ilmari Länsman et al v Finland, Communication No 511/1992, UN Doc CCPR/C/52/D/511/1992 (26 October 1994), [9.3] (emphasis added). CESCR, 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), UN Doc E/C.12/GC/21 (21 December 2009), [2]. CESCR, General Comment No 25 (2020) on science and economic, social, and cultural rights (article 15(1)(b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/GC/25 (30 April 2020), [8, 10, 39, 40]. See also Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed: The right to enjoy the benefits of scientific progress and its applications, UN Doc A/HRC/20/26 (14 May 2012). In its 2006 concluding observation on Botswana, the CERD Committee recommended the State party to ‘protect the economic activities of the San/Basarwa that are an essential element of their culture, such as hunting and gathering practices, whether conducted by traditional or modern means’ (emphasis added). See CERD Committee, Concluding Obser­ vations: Botswana, UN Doc CERD/C/BWA/CO/16 (2006), [12]. The African Court on Human and Peoples Rights (ACtHPR) held that ‘stagnation or the existence of a static way of life is not a defining element of [indigenous] culture or cul­ tural distinctiveness’ (see African Commission on Human and Peoples’ Rights v Republic of Kenya (the Ogiek Case), ACtHPR (Judgement) [2017], Application No 006/2012 (26 May 2017), [185]).

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be falsely restricted as a result of anachronistic notions of the “authentic­ ity” of the culture’.66 In this respect, Gilbert rightly observes that protection of indigenous peoples’ cultural integrity ‘has to be intertemporal, not fixed in the past, but allowing contemporary expression of cultural practices to be recognized’.67 This progressive understanding of culture – enabling indig­ enous peoples to modernize indigeneity – is particularly relevant for coastal indigenous peoples, because many States restrict the rights of indigenous peoples to harvest marine living resources by prohibiting the use of modern means of harvesting.68 In summary, international human rights law recognizes the right to cul­ ture of indigenous peoples, including its material content. This entails that indigenous peoples should be able to continue to access sacred marine sites and to harvest MLRs, including marine mammals, insofar as such harvesting practices are integral to their culture. 3.2.1 Threshold of illegitimate interference to the right to culture Not every State interference with the right to culture of a minority can be regarded as a denial of the right within the meaning of Article 27.69 Thus, a coastal State may legitimately take measures that place restrictions on the right to culture of indigenous communities. Yet, the scope of a State’s free­ dom to adopt such measures ‘is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27’70 –obligations not to deny the right to culture. The HRC, in several cases, has adopted different tests to determine when State measures will amount to a denial of the right to culture. The Commit­ tee has held that restrictions on the right to culture based on ‘both a reason­ able and objective justification’ may be consistent with obligations under 66 ‘Report of the Aboriginal and Torres Strait Islanders Social Justice Commissioner to the Attorney General’, Aboriginal and Torres Strait Islanders Social Justice Commissioner, Native Title Report 2000. For a discussion of the notion of ‘authentic’ culture – a culture which has not been affected by the modern world, see AJ McIntosh and RC Prentice, ‘Affirm­ ing Authenticity: Consuming Cultural Heritage’ (1999) 26(3) Annals of Tourism Research 589–612. 67 J Gilbert, ‘Indigenous Peoples, Human Rights, and Cultural Heritage: Towards a Right to Cultural Integrity’ in A  Xanthaki et al. (eds), Indigenous Peoples and Cultural Heritage: Rights, Debates, Challenges (Brill 2017) 20, 35–36. 68 See Chapter 8 for a detailed discussion of State practice on traditional fishing rights (TFRs) and the requirement of traditional methods. 69 HRC, Sandra Lovelace v Canada, Communication No R.6/24, UN Doc Supp. No 40 (A/36/40) at 166 (30 July 1981), [15]; HRC, Ilmari Länsman (n 61) [9.4]; HRC, Apirana Mahuika (n 53) [9.4]; HRC, Ángela Poma Poma v Peru, Communication No 1457/ 2006, UN Doc CCPR/C/95/D/1457/2006 (27 March 2009), [7.4]. 70 HRC, Apirana Mahuika, ibid., [9.4] (emphasis added). See also HRC, Ilmari Länsman, ibid., [9.4]; HRC, Poma Poma, ibid., [7.4].

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Article 27.71 The HRC has further held that ‘measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under article 27’.72 The Commit­ tee makes it clear that measures taken on unjustifiable grounds or that have ‘adverse impacts’73 on the way of life of the indigenous community concerned amount to a denial of the right to culture. The reasonableness, objectivity, and the gravity of the impact of State measures should be assessed in light of the context and the facts of individual cases. The HRC has also introduced additional standalone procedural protec­ tions. In Apirana Mahuika and Poma Poma, the Committee concluded that the acceptability of measures that affect or interfere with the culturally significant economic activities of [indigenous community] depends on whether the members of the [community] in question have had the oppor­ tunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy.74 Thus, for State measures to be compatible with the obligations under Article 27, the coastal State should demonstrate that it has beforehand con­ sulted or obtained the free, prior, and informed consent (FPIC) of the affected indigenous communities and has devised appropriate mechanisms to enable the communities concerned to continue to harvest traditionally used MLRs, perhaps on a more limited scale than before. The possible approaches of ensuring the continued exercise of traditional activities may take different

71 HRC, Sandra Lovelace (n 69), [16]; HRC, Ivan Kitok v Sweden, Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985 (27 July  1988), [9.8]. The CESCR and the AfComHPR with respect to the right to culture under articles 15 ICESCR and 17 ACHPR respectively provide a similar test (see CESCR, General Comment 21 (n 62) [19]; Center for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (Endorois Case), ACHPR [2009], Communication No 276/2003 (25 November 2009), [249]). 72 HRC, Ilmari Länsman (n 61), [9.4]; HRC, Jouni E Länsman et al v Finland, Communi­ cation No 671/1995, UN Doc CCPR/C/58/D/671/1995 (30 October 1996), [10.3]; HRC, Apirana Mahuika (n 53), [9.4]; HRC, Jouni Länsman et al v Finland, Communication No 1023/2001, UN Doc CCPR/C/83/D/1023/2001 (17 March 2005), [10.1]; HRC, Poma Poma (n 69), [7.4]. 73 For example, the HRC in Ilmari Länsman, ibid., [9.6], held that the quarrying ‘does not appear to have . . . adversely affected’ reindeer herding; and in Jouni Länsman [10.3], the HRC concluded that ‘the effect of logging carried out in . . . areas have not been shown to be serious enough as to amount to a denial of the authors’ right to enjoy their own culture . . . under article 27’. On the other hand, in Poma Poma, ibid., [7.7], the HRC found that the water diversion ‘has substantively compromised the way of life and culture of the . . . com­ munity’. Emphasis added. 74 HRC, Apirana Mahuika (n 53), [9.5]; HRC, Poma Poma, ibid., [7.6] (emphasis added).

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forms, including providing open or quota-based exemptions from strict fish­ eries conservation measures. In sum, a coastal State may interfere with the right of indigenous com­ munities to access culturally important marine sites or harvest traditionally used MLRs up to a certain point insofar as the interference is justifiable, is proportionate with the interests of the community, and if the community concerned participated in the decision-making process. It is worth noting here that the substantive tests and procedural protections are cumulative. Thus, if State measures fail to meet the substantive tests, the State infringes Article 27 regardless of whether it consulted the affected community. Simi­ larly, even if State measures are within the threshold of the substantive tests, the State still violates the right to culture if it fails to involve the community in the decision-making process. These stringent tests clearly demonstrate that international law provides special safeguards against illegitimate interference with the right to culture of indigenous peoples. 3.3 The right to marine space and resources as a property right The indigenous-specific human rights instruments expressly recognize the rights of indigenous communities with respect to their traditional lands and natural resources as protected property rights.75 Similarly, even though the property rights provisions of the general global and regional human rights instruments do not expressly reference indigenous peoples, treaty monitoring bodies and human rights courts and commissions have concluded that these provisions protect the rights of indigenous communities with respect to their traditional lands and natural resources.76 Indeed, commentators suggest that the right of indigenous peoples to traditional lands, territories, and natural resources as property rights is now a right under customary international law.77 This right extends to freshwater fisheries in lakes and rivers.78 How­ ever, the application of exclusive property rights to marine areas and MLRs remains controversial. The practices of treaty monitoring bodies and regional human rights courts in adapting the property rights provisions of the general human 75 See ILO Convention 169 (n 6), Arts 14–16; UNDRIP (n 6), Arts 25 & 26.

76 See Chapter 3 of this book for a detailed discussion.

77 International Law Association (ILA), Rights of Indigenous Peoples: Final Report (Sofia Con­ ference 2012) 27; M Åhrèn, Indigenous Peoples’ Status in the International Legal System (OUP 2016) 165; J Anaya and RA Williams, ‘The Protection of Indigenous Peoples’ Rights Over Land and Natural Resources Under the Inter-American Human Rights System’ (2001) 14 Harvard Human Rights Journal 33, 55. 78 SF Skogvang, Local Community Right to Fish (n 50), 131; A Scott, ‘Introducing Property in Fishery Management’ in R Shotton (ed.), Use of Property Rights in Fisheries Management, FAO Fisheries Technical Paper No 404/1 (FAO 2000) 4.

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rights instruments to the specific context of indigenous peoples’ rights to marine areas and marine resources are scarce.79 The issue of whether the principal provision of the ILO Convention 169 concerning property rights to traditional lands (Article 14) should apply to sea territories was discussed during the negotiation of the Convention. Indigenous peoples’ organiza­ tions expressed their strong concern that the right of ownership and pos­ session of indigenous peoples to lands ‘should be broadened to a territorial one which would encompass flora, fauna, resources . . . as well as sea ice, sea and coastal fishing rights’.80 Nonetheless, this effort to extend the provi­ sions of the Convention dealing with the rights of ownership and possession of indigenous peoples over their traditional lands to saltwater areas failed.81 However, the Convention does include other provisions, which indirectly capture the application of the Convention’s property right provisions to marine areas and marine resources. The following section uncovers those provisions. 3.3.1 Unpacking the meaning of Article 13(2) ILO Convention: indigenous ‘land’ includes marine space ILO Convention 169 defines ‘land’ broadly. Article 13(2) provides that: ‘The use of the term lands in Articles 15 and 16 shall include the concept of ter­ ritories, which covers the total environment of the areas which the [indig­ enous] peoples concerned occupy or otherwise use’.82 The italicized text is broad and includes marine space; in addition, the ILO secretariat emphasizes that ‘[t]he concept of land usually embraces the whole territory [indigenous peoples] use, including forests, rivers, mountains and sea, the surface as well as the sub-surface’.83 The secretariat further states that ‘the concept of land encompasses the land which a community or people uses and cares for as a whole’.84 This interpretation apparently embraces marine areas as part of indigenous peoples’ traditional lands insofar as they have been traditionally occupied or used by the indigenous peoples concerned. Xanthaki concurs, arguing that Article 13(2) of ILO Convention 169 ‘widens the concept of [land] considerably, and consequently widens the protection 79 The practices of the CERD Committee and the HRC in the context of the right to non-discrimination is the exception in this regard, discussed in the next section of this chapter. 80 ILO: Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No 107), Report IV (1), International Labour Conference, 76th Session (Geneva 1989) 4 (emphasis added). 81 Ibid.; C Smith and M Dodson, Report on Indigenous Fishing Rights in the Seas (n 50), [8]. 82 ILO Convention 169 (n 6), Art 13(2) (emphasis added). 83 International Labour Office, ILO Convention on Indigenous and Tribal Peoples, 1989 (No 169): A Manual (ILO 2003) 29 (emphasis added). 84 Ibid., 30.

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of indigenous peoples’ rights to lands to include water resources and other elements’,85 including the marine space. The UNDRIP reinforces this broader understanding by explicitly recog­ nizing the rights of indigenous peoples to ‘maintain and strengthen their distinctive spiritual relationship with their traditionally owned or other­ wise occupied and used lands, territories, waters and coastal seas and other resources’.86 The 2016 UN Study on the Relationships between Indigenous Peoples and the Pacific Ocean embraces the broader meaning incorporated under Article 25 of the UNDRIP. The study found that: ‘the scope of [indig­ enous peoples’] rights to their lands, territories and oceans is not limited to the orthodox perception of a sea boundary but extends to [the sea areas including] the seabed’.87 Thus, Article 13(2) of the ILO Convention 169 and subsequent develop­ ments affirm that the meaning of ‘land’ when applied to indigenous peoples covers the marine space that indigenous peoples occupy or use as part of their traditional territories or traditionally had access to satisfy their subsist­ ence needs or to conduct their spiritual, customary, and traditional activities. These marine areas may include internal waters (such as bays, estuaries, and fjords), archipelagic waters, the territorial sea, and the EEZ to the extent that indigenous peoples have traditionally used them. The actual extent of indig­ enous peoples’ occupation or traditional use determines the areal extent of ‘land’ or territory out in the sea.88 The broader understanding of ‘land’ indicates the nature and extent of indigenous peoples’ rights over marine areas and marine resources. Article 13(2) clearly provides that the broader meaning of ‘land’ applies to Arti­ cle 16 – a provision that prohibits the removal of indigenous peoples from their traditional lands. This, by implication, means that Article 16 of the ILO Convention 169 provides protection against the eviction of indigenous peo­ ples from their traditionally used coastal areas or traditional fishing grounds. Such protection against removal from traditionally used coastal areas neces­ sarily presupposes a recognition and protection of indigenous peoples’ own­ ership or possession rights over those marine areas. Therefore, even though State parties declined to include express provisions regarding ownership or possession rights over marine areas under Article 14, a cumulative reading and an evolutive interpretation of Articles 13(2) and 16 of ILO Convention

85 A Xanthaki, Indigenous Rights and the United Nations Standards: Self-Determination, Cul­ ture and Land (CUP 2007) 81. 86 UNDRIP (n 6), Art 25 (emphasis added). 87 V Toki (Special Rapporteur), ‘Study on the Relationship between Indigenous Peoples and the Pacific Ocean’, Report to Permanent Forum on Indigenous Issues, UN Doc E/C.19/2016/3 (2016), [7]. 88 V Prescott and S Davis, ‘Aboriginal Claims to Seas in Australia’ (2002) 17(1) International Journal of Marine and Coastal Law 1, 15.

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169 reveals that such rights fall within the ambit of the Convention. Thus, State parties have a duty to recognize indigenous communities’ exclusive area-based rights over traditional fishing grounds or sacred sites in certain parts of the marine space, particularly in waters close to the shore.89 This, in turn, entails the right of indigenous communities not to be relocated from those areas unless such relocation is exceptionally necessary; in which case, the relocation ‘shall take place only with their free and informed consent’.90 Article 13(2) of the ILO Convention also references Article 15, which pro­ vides that: ‘The rights of the [indigenous] peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management, and conservation of these resources’.91 A reading of this provision, together with Article 13(2), suggests that the phrase ‘natural resources pertaining to their lands’ covers not only terrestrial natural resources but also marine natural resources located within the marine areas traditionally occupied or used by coastal indigenous communities.92 The rights protected under Article 15(1) ‘include the right to participate in the use, management and conservation of the [marine] resources’.93 However, the term ‘include’ indicates that the bundles of property rights mentioned in the provision are not exhaustive, and, hence, it may include exclusive ownership and possession rights over a certain fishing area. Article 15(2) also recognizes other sets of rights that indigenous communities have in connection with the exploitation of sub­ surface (seabed) resources within, or close to, traditionally occupied or used marine areas. This includes the right to consultation, including the right to FPIC, before the State undertakes or grants permits for seabed (sub-surface) resource exploration and exploitation projects. If the State permits the pro­ ject, indigenous communities still have the right to participate in the benefits resulting from the exploitation of such natural resources (benefit-sharing) 89 For example, the Norwegian Sami fishing rights’ claim in Finnmark follows this area-based approach. See Norges Nasjonale Institusjon for Menneskerettigheter, ‘Sjøsamenes Rett til Sjøfiske’, Temarapport 2016; Skogvang, Local Community Right to Fish (n 50), 127–128; and C Smith, ‘Fisheries in Coastal Sami Areas: Geopolitical Concerns?’ (2014) 5(1) Arctic Review on Law and Politics 4. 90 ILO Convention 169 (n 6), Art 16(1); UNDRIP (n 6), Art 10.

91 ILO Convention 169, ibid., Art 15(1) (emphasis added).

92 For a similar viewpoint see C Smith and M Dodson, Report on Indigenous Fishing Rights

in the Seas (n 50), 8; and RL Johnstone, Offshore Oil and Gas Development in the Arc­ tic (n 16), 61 & 63. Johnstone particularly argues that ‘the communal property rights of indigenous communities to their traditional territories and resources are not limited to [con­ tinental] land; the ocean spaces that [indigenous] peoples have occupied and relied upon for their survival over centuries should not be treated differently from land-based natural resources’ (63). 93 ILO Convention 169 (n 6), Art 15(1). Article 29(1) of the UNDRIP provides similar recogni­ tion stipulating that ‘indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources’.

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and a right to receive fair compensation for any damages caused as a result of the extraction activities. In this way, the Convention tries to balance the interests of States over seabed (sub-surface) resources and indigenous peo­ ples’ rights to traditionally used marine space and marine resources.94 In conclusion, it is permissible to interpret the property rights provisions of general global and regional human rights instruments as protecting the prop­ erty rights of indigenous communities to marine areas and marine resources. Moreover, ILO Convention 169 offers a broad definition of ‘land’, and this can be interpreted to include marine space. UNDRIP reinforces this approach with its express reference to the sea as part of indigenous peoples’ traditional territory. This expansive understanding of ‘land’ has two important effects. First, it reflects indigenous peoples’ worldviews of land and sea territories as a single integrated unit as opposed to the binary conception that many States adopt (see Chapter 1). Second, it justifies the application of property rights norms relating to indigenous peoples’ traditional lands and ‘natural resources’ mutatis mutandis to marine areas and marine resources. 3.3.2 Limits to the right to property over marine space and MLRs The right to property, like the right to culture, is not absolute and can be restricted. However, restrictions on the property rights of indigenous com­ munities over traditionally used marine space and resources must be ‘estab­ lished by law’,95 necessary to achieve a legitimate objective in the general public interest,96 and proportional.97 The fulfillment of these tests should be assessed on a case-by-case basis depending on the type of interference. For example, the introduction of marine resources conservation measures or the approval of a resource extraction project may be considered neces­ sary to protect endangered species or to encourage economic development respectively; thus, they may fulfill a legitimate aim in the public interest. Yet, such measures should be proportional, and a fair balance must be established between such public interest and the essential rights of indigenous communi­ ties. This balance may require the State to exempt indigenous harvesters from the proposed conservation measures or may require the State to reduce the size and scope of a proposed resource extraction project so that indigenous 94 For a more detailed discussion, see D Cambou, J Gildert, and M Dégremont, ‘Marine Pro­ tected Areas and Indigenous Peoples’ Rights: A Case Study of the National Park of the Coral Sea in New Caledonia’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 206–207. 95 UNDRIP (n 6), Art 46(2); ACHR (n 4), Art 21; ACHPR (n 6), Art 14. 96 ACHPR (n), Art 14. 97 ACtHPR, Ogeik Case (n 65), [129 & 130]; Saramaka People v Suriname, IACtHR (Prelimi­ nary Objections, Merits, Reparations and Costs) [2007], Case No 172 (28 November 2007), [127]; IACtHR, Yakye Axa Indigenous Communities v Paraguay, IACtHR (Merits, Repara­ tions and Costs) [2005], Case No 125 (17 June 2005), [145].

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communities will be able to continue with their traditional activities. The acceptability of the interference will also depend on whether the indigenous communities concerned have had the chance to participate in the decision­ making process.98 Thus, international law provides guarantees against arbi­ trary restrictions on the property rights of indigenous communities in relation to marine resources. 3.4 Non-discrimination in property rights over marine space and resources The right to equality and non-discrimination is widely recognized in the gen­ eral and indigenous-specific human rights instruments, as well as the prac­ tices of UN treaty monitoring bodies and regional human rights institutions. The norm provides protection to indigenous peoples against any form of discrimination in the enjoyment of all types of their human rights.99 In other words, the right to non-discrimination is not a standalone right exercisable independently but rather in conjunction with other human rights, including the right to property.100 Article 5(d)(v) of the CERD Convention, for exam­ ple, obliges State parties to prohibit discrimination in all its manifestations in the enjoyment of ‘the right to property alone or in association with others’. For the CERD Committee, this includes the duty to recognize and protect indigenous peoples’ property rights to their traditionally used marine areas and marine resources. The failure to do so is discrimination against indig­ enous peoples.101 The right to non-discrimination has two main dimensions when applied to indigenous peoples’ property rights over marine resources. First, indigenous peoples must be treated in the same manner as non-indigenous peoples in the enjoyment of the right to property. Thus, if domestic law acknowledges property rights to marine areas and MLRs for non-indigenous peoples, it should also recognize the property rights of indigenous communities over their traditionally used marine areas and marine resources.102 This right also requires States to recognize commercial fishing by indigenous peoples inas­ much as it recognizes the same right to other peoples. Many coastal States have established different forms of quota-based or territorial-based prop­ erty rights systems over commercial fisheries, including different forms of 98 IACtHR, Saramaka People, ibid., [130]. 99 See Chapter 3 for a detailed discussion. 100 Committee on Economic, Social, and Cultural Rights (CESCR), General Comment No 20: Non-Discrimination in Economic, Social and Cultural Rights (art 2, para 2, of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/GC/20 (2 July 2009), [7]. 101 CERD Committee, General Recommendation No 23: Indigenous Peoples (Fifty-First ses­ sion 1997), [5]. 102 Skogvang, Local Community Right to Fish (n 50), 137.

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individual transferable quotas (ITQs)103 and territorial use rights for fisher­ ies (TURFs).104 Hence, the right to equality and non-discrimination requires coastal States to recognize indigenous communities’ customary property rights over traditional fishing grounds and marine resources in the same manner. The CERD Committee applied this dimension of the right to non­ discrimination in the foreshore and the seabed-related dispute between the Maori and New Zealand.105 Following the New Zealand Court of Appeal’s decision in Ngati Apa that affirmed customary Maori property rights to the foreshore and seabed areas of the Marlborough Sound,106 the New Zealand government enacted the Foreshore and Seabed Act of 2004. The Act declared the foreshore and seabed to be owned by the Crown in order to preserve them as ‘the common heritage of all New Zealanders’.107 The Maori claim­ ants argued that the Act was discriminatory as it unjustifiably extinguished their customary property rights over the foreshore and the seabed (protected under the Treaty of Waitangi) while vesting those areas in the Crown. The CERD Committee held that the legislation contains discriminatory aspects against the Maori, in particular in its extinguishment of the possibility of establishing Maori customary titles over the foreshore and seabed and its failure to provide a guaranteed right of redress, notwithstanding the State party’s obligations under articles 5 and 6 of the Convention.108 103 See generally D Symes and K Crean, ‘Privatization of the Commons: The Introduction of Individual Transferable Quotas in Developed Fisheries’ (1995) 26 Geoforum 175; I Clark, ‘Individual Transferable Quotas: The New Zealand experience’ (1993) 17(5) Marine Policy 340; BJ McCay et al., ‘Individual Transferable Quotas (ITQs) in Canadian and US Fisher­ ies’ (1995) 28 (1–3) Ocean and Coastal Management 85. 104 CNT Quynh et al., ‘Territorial Use Rights for Fisheries (TURFs): State of the Art and the Road Ahead’ (2017) 75 Marine Policy 41; JC Afflerbach et al., ‘A Global Survey of “TURFReserves”, Territorial Use Rights for Fisheries Coupled with Marine Reserves’ (2014) 2 Global Ecology and Conservation 97. 105 This dispute concerns Maori’s claim to exclusive title over the foreshore (i.e., the area of land between the low and high tide marks) and the seabed in relation to the territorial sea (i.e., from low tide seaward for 12 nm). See A Erueti, New Zealand/Aotearoa (n 53), 243. 106 Ngati Apa v Attoney-General [2003] Court of Appeal of New Zealand, 3 NZLR 643. See also S Fiorletta-Leroy, ‘The Attorney-General v Ngati Apa (“Ngati Apa” or “Marlborough Sounds”) Case’ (2006) 3 New Zealand Postgraduate Law E-Journal 1, 9; V Toki, Indig­ enous Peoples’ Fisheries Rights (n 87), 63–65. 107 R Stavenhagen, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, Mission to New Zealand, UN Doc E/ CN.4/2006/78/Add.3 (March 2006) [48]; A Erueti, New Zealand/Aotearoa (n 53), 244. 108 CERD Committee, New Zealand Foreshore and Seabed Act 2004: Decision 1(66), UN Doc CERD/C/DEC/NZL/1 (27 April 2005) [6]. The Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, on his Mission to New Zealand, also criticized the Act as ‘a step backward for Maori in relation to the progressive

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The Committee further recommended two possible ways to eliminate or mitigate the discriminatory effects of the Foreshore and Seabed Act. First, it urged New Zealand to resume dialogue with the Maori community in order to amend the legislation.109 Second, and alternatively, it requested New Zealand to monitor closely the implementation of the Act and its impact on the Maori people and ‘to take steps to minimize any negative effects [of the Act], especially by way of a flexible application of the legislation and by broadening the scope of redress available to the Maori’.110 Yet, the Commit­ tee did not provide any guidance as to what constitutes flexible application and broader redress, thereby leaving wide discretion to the State. The HRC also criticized the Act in its 2010 concluding observation on New Zealand’s periodic report. Emphasizing the cultural and religious significance of access to the foreshore and seabed for the Maori, the HRC recommended that New Zealand increase its efforts for ‘effective consultation’ of representatives of all Maori groups with a view to amending or repealing the Act.111 New Zealand replaced the Act in 2011 with the Marine and Coastal Area Act, but the new Act is still the subject of criticism. In its 2016 Concluding Observation, the HRC noted that the new Act ‘has not adequately addressed the discriminatory effects on Maori claims to their customary land and their right to cultural development’ and recommended that New Zealand revise the Act.112 The CERD Committee issued similar recommendations in its 2017 Concluding Observation, requesting that New Zealand review the Act with a view to respecting and protecting the full enjoyment by Maori communities of their rights to marine resources and their access to places of cultural and traditional significance.113

109

110

111 112

113

recognition of their rights through the Treaty Settlement Process over recent years’ (See R Stavenhagen, Mission to New Zealand (n 107), [55]). CERD Committee, New Zealand Foreshore and Seabed Act 2004: Decision 1(66), ibid., [7]. For a similar recommendation, see R Stavenhagen, Mission to New Zealand, ibid., [92]. CERD Committee, New Zealand Foreshore and Seabed Act 2004: Decision 1(66), ibid., [8] (emphasis added). For comments on the CERD Committee’s views, see C Charters and A Erueti, ‘Report from the Inside: The CERD Committee’s Review of the Foreshore and Seabed Act 2004’ (2005) 36(2) Victoria University of Wellington Law Review 257. HRC, Concluding Observation: New Zealand, UN Doc CCPR/C/NZL/CO/5 (7 April 2010) [19]. HRC, Concluding Observation: New Zealand, UN Doc CCPR/C/NZL/CO/6 (28 April 2016) [43  & 44]. In order to establish customary title over marine areas, the new Act requires the Maori applicant group to demonstrate exclusive use and occupation of the area since 1840 without substantial interruption (i.e., provide evidence of continuity of Maori customary rights to the sea). The HRC was particularly critical of this stringent criterion for recognition of Maori customary property rights over the foreshore and the seabed [44]. CERD Committee, Concluding Observations on the Combined Twenty-First and TwentySecond Periodic Reports of New Zealand, UN Doc CERD/C/NZL/CO/21–22 (22 Septem­ ber 2017) [20 & 21]. See generally A Erueti, New Zealand/Aotearoa (n 53).

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In its 2022 Concluding Observation on Russia, the CERD Committee criticized the State party for imposing ‘excessive bureaucracy and restric­ tive regulations for indigenous fisheries, while prioritizing and facilitating commercial fisheries’.114 It then recommended that Russia ‘review the legal and policy frameworks on fishing, with the aim of facilitating indigenous peoples’ access and repealing any discriminatory restrictions on indigenous fisheries’.115 Likewise, in its Concluding Observation on France, the CERD Committee expressed its concern as to the rights of the Kanaka indigenous peoples of New Caledonia observing that ‘access to [their] fishing grounds and to the sea is impeded (art. 5)’.116 The CERD Committee recommended the State party ‘[f]ind definitive solutions for the remaining land issues in New Caledonia, including the issue of how to guarantee access to fishing grounds and to the sea’;117 and to facilitate this to ratify international human rights treaties which it had not yet ratified, including the ILO Convention 169.118 The Special Rapporteur on the Rights of Indigenous Peoples offered similar recommendations to France.119 The HRC also applied the first dimension of the right to non-discrimination (i.e., the view that all cases be treated equally) in the case of Erlingur Sveinn Haraldsson and Örn Snævar Sveinsson v Iceland.120 The case concerned a challenge to the Icelandic fisheries management system which was based on individual transferable quotas (ITQs). Under this system, fishing permits were issued free of charge to persons who had previously fished specific types of fish (demersal fish, shellfish, herring, and capelin) during a specified period (between 1 November 1980 and 31 October 1983), and the recipients were entitled to sell the quotas. All other fishers, including the complainants, who did not engage in fishing during the ‘reference period’ received no quotas. The complainants alleged that the permit and quota system was discrimina­ tory since it gave the quota recipients public property for free but required the complainants (as non-recipients of original quotas) to purchase or lease a

114 CERD Committee, Concluding Observation: Russia, UN Doc CERD/C/RUS/CO/ 25–26 (28 April 2023), [29(e)]. 115 Ibid., [30(f)]. 116 CERD Committee, Concluding Observations on the Combined Twentieth and TwentyFirst Periodic Reports of France, UN Doc CERD/C/FRA/CO/20–21 (10 June 2015), [13]. 117 Ibid. 118 Ibid., [18]; and CERD Committee, Concluding Observations of the Committee on the Elimination of Racial Discrimination: France, UN Doc CERD/C/FRA/CO/17–19 (23 Sep­ tember 2010), [18]. 119 ‘Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Situation of Kanka People in New Caledonia, France’, J Anaya, UN Doc A/HRC/18/35/Add.6 (23 November 2011), [esp. 32–34, 79]. For further discussion, see D Cambou, J Gildert, and M Dégremont, ‘Marine Protected Areas and Indigenous Peoples’ Rights (n 94). 120 HRC, Erlingur Sveinn Haraldsson and Örn Snævar Sveinsson v Iceland [2007] Communi­ cation No 1306/2004, UN Doc CCPR/C/91/D/1306/2004 (24 October 2007).

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right to fish from the quota holders.121 The HRC held that granting a group of fishers free quota and entitling them to sell it while denying other groups of fishers of a similar entitlement because they did not engage in fishing during the reference period constitutes a distinction ‘based on grounds equivalent to those of property’.122 While acknowledging that the aim of such distinction, namely the protection of the fish stocks which constitute a limited resource, is legitimate, the Committee concluded that ‘the property entitlement privi­ lege accorded permanently to the original quota owners, to the detriment of the complainants, is not based on reasonable grounds’.123 The HRC, thus, concluded that the design and modalities of the implementation of the Ice­ landic quota system constituted discrimination in violation of Article 26 of ICCPR124 and that Iceland ‘is under an obligation to provide the [complain­ ants] with an effective remedy, including adequate compensation and review of its fisheries management system’.125 Although this case did not specifically relate to indigenous rights, the HRC’s conclusion is relevant as it generally affirmed that the design of a marine fisheries management system that discriminates against peoples’ abili­ ties to earn their livelihoods is a violation of the norm of non-discrimination incorporated in the ICCPR. This finding clearly demonstrates that coastal States need to exercise their sovereign rights to conserve and manage MLRs in a manner that conforms to established human rights standards, including the right to non-discrimination. The second dimension of the right to non-discrimination requires not only that all cases be treated equally but also that groups with different cultural backgrounds and ways of life be treated differently.126 This dimension is of particular relevance to the rights of indigenous peoples to marine areas and marine resources. First, the norm requires States to recognize the property rights of indigenous communities over marine areas and MLRs in a man­ ner that respects their customary or traditional resource use and manage­ ment systems consistent with their distinct way of life and cultural identity. In particular, this requires recognition of the use of traditional fishing and hunting methods, which also embraces the freedom to adapt those methods 121 Ibid., [2.8, 4.1, 6.1, 9.2 & 9.3].

122 Ibid., [10.3].

123 Ibid., [10.4] (emphasis added). The HRC emphasized that the distinction based on the

activity during the reference period, which initially was adopted as a temporary measure, was reasonable and based on objective criterion; but the adoption of the Fisheries Man­ agement Act of 1990 made the allocated quotas permanent and allow the original holders to sell or lease unused quotas at market prices instead of reverting them to the State for allocation to new quota holders in accordance with fair and equitable criteria. This made the quota system unreasonable [10.4]. 124 Ibid., [11]. 125 Ibid., [12]. 126 For a detailed discussion of this dimension of the right to non-discrimination, see Chapter 3.

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to modern technologies. Second, the norm requires States to take special measures to enable indigenous communities to use marine areas and to har­ vest marine resources.127 In this respect, emphasizing that sea salmon fish­ ing forms an important part of coastal Sami culture, the Special Rapporteur on the Rights of Indigenous Peoples urged Norway to recognize and pro­ tect these fishing rights ‘by special measures to ensure they can be pursued and maintained according to Sami tradition in a culturally and ecologically sustainable way’.128 Such special measures or preferential rights may take different forms, including the reservation of traditional fishing grounds for the exclusive use of indigenous peoples or by providing exemptions (open or quota-based exemptions) to indigenous communities to harvest certain MLRs of special significance, even if included in an MPA.129 In conclusion, the right to equality and non-discrimination serves as an additional legal basis for the recognition of the property rights of coastal indigenous communities over their traditionally used marine areas and MLRs. The norm obliges States to ensure that they do not implement any policy, law, or practice that discriminates against indigenous peoples in the enjoyment of their property rights over marine space and resources. It also requires States to provide differential treatment and special measures geared towards strengthening indigenous peoples’ unique way of life and marine tenure systems. 3.5 Procedural safeguards: the right to consultation and FPIC The right to consultation is an essential procedural right, which makes the substantive rights of indigenous peoples relating to traditionally used marine areas and marine resources effective and applicable.130 It entitles indigenous peoples to participate either directly or through their chosen representatives in all matters which may negatively affect their rights and interests relating to marine space and MLRs. Article 6 of ILO Convention 169 requires State

127 CERD Convention (n 6), Arts 1(4) & 2(2); ILO Convention 169 (n 6), Art 4; UNDRIP (n 6), Art 21(2). 128 Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Human Rights Situations of the Sami People in the Sápmi Region of Norway, Sweden and Finland, V Tauli-Corpuz (n 59), [78]. 129 See S Farran, ‘Marine Protected Areas and Indigenous Rights’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 319; NC Ban and A Frid, ‘Indigenous Peoples’ Rights and Marine Protected Areas’ (2018) 87 Marine Policy 180; D Cambou, J Gilbert, and M Dégremont, Marine Protected Areas and Indig­ enous Peoples’ Rights (n 94). 130 V Tauli-Corpuz, ‘Consultation and Consent: Principles, Experiences and Challenges’, Pres­ entation at the International Colloquium on the Free, Prior, and Informed Consultation: International and Regional Standards and Experiences (Mexico City, 8 November 2016) 4.

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parties to consult indigenous peoples in good faith and with the objective of achieving agreement or consent ‘whenever consideration is being given to legislative or administrative measures which may affect them directly’.131 Article 19 of the UNDRIP similarly obliges State parties to consult and cooperate in good faith with coastal indigenous peoples in order to obtain their FPIC before adopting measures that may affect them.132 These two provisions are general and apply to a wide range of matters. In the present context, this might require consultation before the adoption of any fishery conservation and management measures having a negative impact on indig­ enous communities, such as a prohibition on fishing and hunting, processes to determine quotas, restrictions on fishing and hunting methods, or the establishment of MPAs within traditional fishing grounds. It also requires the participation of indigenous peoples in the management and benefits of declared MPAs133 and in the adoption of regulatory measures for commer­ cial fisheries, such as the determination of quotas, seasons, and the use of fishing equipment.134 Article 15(2) of ILO Convention 169 and Article 32(2) of UNDRIP require consultation and participation in the specific context of resource exploitation projects in indigenous peoples’ traditional lands and territories. This would require a coastal State to consult indigenous communities in good faith before ‘the approval of any project’ affecting their traditionally used marine areas and traditional fishing grounds, particularly with respect to projects involv­ ing ‘the development, utilization or exploitation of . . . [marine] resources’135 131 ILO Convention 169 (n 6), Art 6.

132 UNDRIP (n 6), Art 19. For a detailed discussion, see section 6 of Chapter 3.

133 The 10th Conference of Parties of the Convention on Biological Diversity (CBD) recognizes

that: ‘Protected areas should . . . be established and managed in close collaboration with, and through equitable processes that recognize and respect the rights of indigenous and local communities, and vulnerable population. These communities should be fully engaged in governing and managing protected areas according to their rights, knowledge, capacities, and institutions, and should equitably share in the benefits arising from protected areas and should not bear inequitable coasts’. See Conference of the Parties to the Convention on Biological Diversity, Strategic Plan for Biodiversity 2011–2020, UNEP/CBD/COP/10/ INF/12/Rev 1 (Nagoya, 18–29 October 2010), Target 11. 134 ILO Convention 169 (n 6), Art 15(1); UNDRIP (n 6), Art 29(1); Convention on Biological Diversity, concluded at Rio de Janerio on 5 June 1992, 1760 UNTS 79 (entered into force 29 December  1993), Art 8(j). Such forms of participation enable indigenous peoples to safeguard their interests against the adverse impact of commercial fishing, as it gives them a possibility to prevent or limit the number of vessels that might enter into specific traditional fishing grounds and the amount of catch of fish stocks of cultural relevance to indigenous communities (see C Smith and M Dodson, Report on Indigenous Fishing Rights in the Seas (n 50), [8]). 135 UNDRIP, ibid, Art 32(2); ILO Convention 169, ibid, Art 15(2). See J Anaya, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions About Natural Resource Extrac­ tion: The More Fundamental Issue of What Rights Indigenous Peoples Have in Land and Resources’ (2005) 22(1) Arizona Journal of International and Comparative Law 1.

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and to involve them in impact assessment studies.136 This might include com­ mercial fishing operations, fish farming (aquaculture or mariculture), various forms of extractive industrial development activities (including oil, gas, and mineral extraction), and marine renewable energy development within or close to marine areas traditionally used by indigenous communities – collec­ tively discussed in the literature as ‘ocean grabs’ or ‘coastal grabs’.137 Good faith requires that coastal States must be open to hear and be influenced by the views of the coastal indigenous communities concerned and be prepared to abandon or modify the proposed measure or marine-related project in a manner that minimizes its potential impacts. Consultation undertaken solely as a symbolic gesture or to provide information without follow-up action does not constitute good faith consultation.138 Procedural rights may also go beyond good faith consultation and require the State to obtain the FPIC of the affected community. There are two clear and unambiguous cases where FPIC should be required: where the implemen­ tation of the proposed measure or project requires the removal of indigenous communities from their traditionally used marine areas and traditional fishing grounds139 and where the project involves the storage or disposal of hazardous waste in those areas.140 In other cases, the issue of whether FPIC is required depends on the nature of the proposed measure and the extent of its impact, i.e., with respect to matters of fundamental importance for the survival, dig­ nity, and well-being of the indigenous peoples concerned.141 This must be determined on a case-by-case basis. Relevant factors in such assessment might include the location and area coverage of the project, the extraction and dis­ posal method, and the extent of disturbance to sea habitats, fish stocks, and marine mammals of special significance to indigenous communities.142 In sum, the rights to consultation, participation, and FPIC serve as impor­ tant procedural safeguards against all measures, including resource develop­ ment projects, which involve the reallocation of rights to access, control, or use of the marine space and the associated resources away from the tradi­ tional user coastal indigenous communities. The norm promotes an inclusive approach requiring coastal States to involve indigenous peoples in the gov­ ernance and management of marine areas and resources, including in impact assessment studies of proposed in/offshore resource development projects.

136 ILO Convention 169, ibid, Art 7.

137 See Chapter 1 of this book.

138 ILO CEACR, General Observation on the Right of Indigenous and Tribal Peoples to Con­ sultation (Observation 2010/81), 8–9. 139 ILO Convention 169 (n 6), Art 16 and UNDRIP (n 6), Art 10. 140 UNDRIP, ibid, Art 29(2). 141 For a detailed discussion, see Chapter 3. 142 V Toki, Study on the Relationship between Indigenous Peoples and the Pacific Ocean (n 87), [35].

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4. Conclusion Marine space and marine resources are the economic and cultural centers for coastal indigenous peoples. Despite this significance, international human rights law does not expressly protect the rights of indigenous peoples with respect to these marine areas and marine resources. Yet, it is possible to derive such rights protections from the general rules and principles of law applicable to traditional ‘lands’ and ‘natural resources’. This chapter demon­ strates this application at two levels. First, at the general level, this chapter concluded that human rights instruments bind contracting States through­ out their national territorial limits and within areas under their ‘jurisdic­ tion’, including maritime space. Second, this chapter concludes that specific human rights norms applicable to traditional lands and natural resources, such as the right to self-determination, the right to cultural integrity, the right to property, the right to non-discrimination, and the right to consultation and participation, including FPIC, implicitly, if not expressly, recognize and provide protection to indigenous peoples’ right to traditionally used marine areas and to harvest MLRs. In this regard, the HRC and the CERD Commit­ tee have played a significant role in evolutively interpreting and adapting the general human rights norms, particularly the right to culture and the right to non-discrimination, to the specific contexts of indigenous peoples’ rights to marine areas and MLRs. Yet, this practice is still limited with respect to marine space and marine resources and certainly not as extensive as the prac­ tice relating continental land and terrestrial resources. To sum up, a combination of the various international human rights law instruments pertaining to indigenous peoples and the practices of judicial and treaty monitoring bodies adapting the general human rights norms to the specific contexts of indigenous peoples’ traditional lands and natural resources together constitute the basis for recognition and protection of the longstanding customary rights of indigenous peoples relating to marine areas and MLRs. Thus, the tendency of States to treat the marine areas and MLRs differently from traditional lands and natural resources has no legal basis and serves no purpose other than perpetuating the ‘customary international law of indigenous exclusion’.143

143 B Clavero, ‘The Indigenous Rights of Participation and International Development Policies’ (2005) 22(1) Arizona Journal of International and Comparative Law 41, 43.

Part III

Law of the sea and its interaction with the rights of indigenous peoples

Chapter 5

Rights and obligations of coastal states with respect to marine living resources under the law of the sea

1. Introduction The law of the sea is one of the oldest branches of international law gov­ erning the various activities of States concerning diverse matters of ocean space. It regulates the rights and obligations of States and provides a clear legal framework for the ways in which the different maritime zones should be accessed, utilized, and managed. While the law of the sea originally con­ sisted of rules of customary law derived from State practice, these rules have been progressively codified in a series of codification conferences. The United Nations Convention on the Law of the Sea (LOSC), regarded as a ‘constitu­ tion for the oceans’,1 is the most important and comprehensive outcome of the long-lasting negotiations of the final codification conference. The Con­ vention drastically transformed the law of the sea concerning the utilization and regulation of marine resources. It establishes the maximum breadth of the territorial sea, introduces the new maritime zones of archipelagic waters and the exclusive economic zone (EEZ), and confers complete sovereignty or sovereign rights over the marine resources of those zones to the adja­ cent coastal and/archipelagic States. Parallel to their sovereignty or sovereign rights over marine resources, coastal States also assume various levels of obli­ gations in the different maritime zones. After shortly tracing the historical development of the law of the sea, this chapter examines the core rights and obligations of coastal States with respect to the marine living resources (MLRs) of the different maritime zones under national jurisdiction. For the sake of completeness, the chapter also discusses the principle of freedom of fishing and the associated obligations of all States fishing on the high seas. The chapter serves as a basis from which

1 Remarks by TB Koh, of Singapore, President of the Third United Nations Conference on the Law of the Sea. See also SV Scott, ‘The LOS Convention as the Constitutional Regime for the Oceans’ in AGO Elfrink (ed.), Stability and Change in the Law of the Sea: the Role of the LOSC (Martinus Nijhoff 2005) 9–38.

DOI: 10.4324/9781003242772-8

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subsequent chapters draw in analyzing specific issues related to the rights of indigenous peoples to marine space and MLRs. 2. Development of the law of the sea The law of the sea has been in a state of constant development throughout its history. As discussed in Chapter 2, the early history of the law of the sea was dominated by the practice of a few maritime powers, which led to the emergence of the doctrine of the freedom of the seas in the 17th century. However, the freedom of the sea doctrine was challenged in the 20th cen­ tury, primarily by developing States that considered the doctrine as de facto discriminatory and serving only the interests of a few developed and techno­ logically advanced States.2 These States challenged the doctrine of the free­ dom of the sea through different modalities, including unilateral assertions of sovereignty/sovereign rights over the sea. Beginning in the 20th century, coastal States began to claim a right to control and exercise jurisdiction over the waters closest to their coast, known as the territorial sea, for purposes of security and to control fishery resources.3 The claims of the coastal States over the territorial sea up to 3 nautical miles (nm), based on the cannon­ shot rule, became a widespread State practice and accepted as customary international law. After World War II (WWII), many coastal States sought further seaward expansion of their national jurisdiction to meet their increas­ ing resource demands. The two Truman proclamations (1945), whereby the United States (US) unilaterally claimed to establish a ‘fisheries conservation zone’ and to exercise jurisdiction and control over the natural resources of the subsoil and seabed of the continental shelf, marked a turning point.4 These Truman proclamations inspired many coastal States to unilaterally claim expanded rights and jurisdiction over the fishery and subsoil natural resources located further in the sea.5 State practice further intensified in the 1960s, following the United Nations (UN) decolonization process, when sev­ eral newly independent coastal States asserted extended national jurisdiction over the living resources beyond the territorial sea in the form of an exclusive 2 For a detailed discussion, see EL Enyew, ‘Sailing with TWAIL: A Historical Inquiry into Third World Perspectives on the Law of the Sea’ (2022) 21 Chinese JIL 439, 456–460. 3 DR Rothwell and T Stephens, The International Law of the Sea (Hart 2010) 4. 4 Presidential Proclamation No. 2667, concerning the Policy of the United States with respect to the Natural Resources of the Subsoil and Seabed of the Continental Shelf, available at: www. presidency.ucsb.edu/documents/proclamation-2667-policy-the-united-states-with-respect­ the-natural-resources-the-subsoil; Presidential Proclamation No. 2668, concerning the Policy of the United States with respect to Coastal Fisheries in Certain Areas of the High Seas, avail­ able at: www.presidency.ucsb.edu/documents/proclamation-2668-policy-the-united-states­ with-respect-coastal-fisheries-certain-areas (accessed September 2023). 5 D Anderson, ‘The Development of the Modern Law of the Sea’ in V Lowe (ed.), Modern Law of the Sea: Selected Essays (Martinus Nijhoff 2008) 1, 8.

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fishing zone (EFZ).6 Such claims threatened to transform the law of the sea concerning the use and regulation of MLRs. 2.1 Codification of the law of the sea Beginning in the early 20th century, there have been several attempts to cod­ ify the rules of customary international law applicable to the sea. In 1930, the League of Nations convened the Hague Codification Conference to codify State practice surrounding the law of the sea, focusing on the rights of coastal States and the treatment of foreign vessels in the territorial sea.7 Unfortu­ nately, the conference did not reach any agreement on these issues and was, therefore, unable to adopt any treaty on the law of the sea. However, the report adopted by the Second Committee of the conference included draft articles regarding the nature and extent of the rights of coastal States over the territorial sea (though no agreement was reached as to its breadth) and the right of innocent passage. These draft articles served as the basis for negotia­ tions that led to the subsequent codification conference.8 The task of codification of the law of the sea resumed after WWII under the auspices of the UN and was undertaken in three successive conferences. The First UN Conference on the Law of the Sea (UNCLOS I) was held in 1958 in Geneva and succeeded in adopting four conventions: the Convention on the Territorial Sea and Contiguous Zone,9 the Convention on the Con­ tinental Shelf,10 the Convention on the High Seas,11 and the Convention on Fishing and Conservation of the Living Resources of the High Seas.12 The first three of these conventions codified customary international law concern­ ing the territorial sea, the continental shelf, and the high sea regimes, respec­ tively, and were ratified by a large number of States.13 On the other hand, the fourth Convention received little attention partly because it ‘went further than the existing obligations which customary law imposed on States’ inso­ far as it suggested that conservation of the living resources of the high seas

6 WT Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Claren­ don Press 1994) 14. 7 Y Tanaka, The International Law of the Sea, 1st edn (UP 2012) 20. 8 RR Churchill and AV Lowe, The Law of the Sea, 3rd edn (Manchester University Press 1999) 15. 9 Convention on the Territorial Sea and Contiguous Zone, concluded at Geneva on 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964). 10 Convention on the Continental Shelf, concluded at Geneva on 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964). 11 Convention on the High Seas, concluded at Geneva on 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962). 12 Convention on Fishing and Conservation of the Living Resources of the High Seas, con­ cluded at Geneva on 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966). 13 Churchill and Lowe, The Law of the Sea (n 8), 15.

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prevail over the widely accepted freedom of fishing.14 Yet, the Convention influenced subsequent developments relating to the conservation of MLRs. Generally, UNCLOS I  laid the foundation for contemporary international law of the sea with the conclusion of the four Geneva Conventions. As such, UNCLOS I ‘represented an important phase in the development of the law [of the sea] as it was transformed from a body of international law having an almost exclusively customary basis to one founded upon a multilateral treaty framework’.15 Nonetheless, UNCLOS I  did not resolve certain mat­ ters, including the breadth of the territorial sea and the fisheries jurisdiction of coastal States. The Second UN Conference on the Law of the Sea (UNCLOS II) was con­ vened in 1960 in Geneva exclusively to deal with the two issues not resolved in the previous conference.16 On those issues, participants in the conference were divided into two groups: those favoring a 6 nm territorial sea and those supporting a 12 nm territorial sea.17 The US and Canada jointly offered a compromise – the ‘Six plus Six proposal’ – a 6 nm limit of territorial sea and a 6 nm EFZ.18 However, this proposal failed to achieve the required two­ thirds majority support, as a result of which the UNCLOS II failed to reach an agreement on any reforms or modifications to the 1958 Geneva Conven­ tions.19 With the failure of UNCLOS II to establish the breadth of the territo­ rial sea and the coastal State’s EFZ, a large number of coastal States (notably South and Central American States and Iceland) unilaterally expanded their territorial sea and fishing zones up to 12 nm or well beyond that with some States claiming up to 200 nm.20 Although these claims were largely opposed and went unrecognized, they did influence subsequent developments of the seaward expansion of national fisheries jurisdictions. The inadequacies and gaps of the four Geneva Conventions, the failure of UNCLOS II to establish the breadth of the territorial sea, and the need to accommodate new concerns and developments in State practice that emerged after the previous conferences necessitated the convening of the Third UN

14 Ibid. 15 Rothwell and Stephens, The International Law of the Sea (n 3), 9. For a detailed discussion on UNCLOS I and its outcomes from a third world perspective, see EL Enyew, Sailing with TWAIL (n 2), 464–467. 16 Rothwell and Stephens, The International Law of the Sea, ibid., 9. 17 Ibid., 9. 18 Churchill and Lowe, The Law of the Sea (n 8), 15. The International Court of Justice (ICJ) in the Fisheries Jurisdiction Case defined the concept of ‘fishery zone’ as the ‘area in which a State may claim exclusive fishery jurisdiction independently of its territorial sea’, (see Fish­ eries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v Iceland) (Judgement) [1974] ICJ Rep 3, [52]). 19 Y Tanaka, The International Law of the Sea (n 7), 24; Rothwell and Stephens, The Interna­ tional Law of the Sea (n 3), 9. 20 WT Burke, The New International Law of Fisheries (n 6), 14.

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Conference on the Law of the Sea (UNCLOS III), which held its first session in 1973. The main concerns and developments that required a new legal regime included coastal States’ expansion of national jurisdiction towards the high seas in order to control offshore fishery resources, the development of seabed mining technology that made it possible to exploit the natural resources of the seabed, and a growing concern to protect the marine environment.21 The emergence of newly independent member States of the UN, many of which did not take part in the adoption of the 1958 Geneva Conventions, provided an additional reason for reviewing the earlier treaties and adopting ‘a new and generally accepted Convention on the law of the sea’.22 The negotiations at UNCLOS III took nearly a decade and culminated with the adoption of the LOSC in 1982.23 The LOSC establishes a compre­ hensive regime dealing with ‘all issues relating to the law of the sea’.24 The Convention expands the existing rules of the Geneva Conventions, estab­ lishes the breadth of the territorial sea as being no more than 12 nm, recog­ nizes new maritime zones – including archipelagic waters, the EEZ, and the deep seabed (the Area) – and creates a regime of compulsory dispute settle­ ment. Currently, the LOSC constitutes the main instrument of the law of the sea regime that is ‘almost universally accepted and is moving steadily closer to universal subscription’.25 However, the LOSC continues to evolve to deal with changing circumstances, including through the adoption of implement­ ing agreements that elaborate the provisions of the Convention26 and inter­ pretation of its provisions.27 3. Rights and obligations of coastal States with respect to MLRs in the different maritime zones The LOSC divides the ocean into multiple maritime zones. Maritime zones under national territorial sovereignty consist of internal waters, the territorial 21 Y Tanaka, The International Law of the Sea (n 7), 25.

22 United Nations Convention on the Law of the Sea (LOSC), concluded at Montego Bay on

10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994), preamble, recital 2. See also RR Churchill, ‘The 1982 United Nations Convention on the Law of the Sea’ in DR Rothwell et al. (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 24–45. 23 For a detailed discussion of the negotiations at UNCLOS III, see E Miles, Global Ocean Politics: The Decision Process at the Third United Nations Conference on the Law of the Sea, 1973–1982 (Springer 1998). 24 LOSC, preamble, recital 1. 25 Churchill and Lowe, The Law of the Sea (n 8), 22. As of September 2023, 167 States and the EU have ratified the LOSC. 26 The UN Fish Stocks Agreement (UNFSA) and the recently adopted BBNJ treaty on the con­ servation and sustainable use of marine biodiversity of areas beyond national jurisdiction are two such implementing agreements relevant for the current purposes. 27 The amendment procedures of LOSC provided under Articles 312 to 316 is another mecha­ nism that enable the Convention to deal with newly emerging circumstances.

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sea, and archipelagic waters; maritime zones under national jurisdiction include the contiguous zone, the EEZ, and the continental shelf; and mari­ time zones beyond national jurisdiction include the high seas and the Area. Consequently, the law of the sea primarily follows a zonal approach and dis­ tributes various levels of jurisdiction, rights, and corresponding obligations to coastal States and all other States in each maritime zone.28 This section discusses the rights and obligations of coastal States with respect to MLRs in the relevant maritime zones. 3.1 The rights and obligations of coastal States in internal waters and the territorial sea Internal waters and the territorial sea are the maritime zones that are closest to the land territory of coastal States. The baseline from which the territorial sea is measured serves as a boundary for internal waters and the territo­ rial sea,29 as well as the starting point for measuring the breadth of other maritime zones. The normal baseline is the low-water line along the coast.30 However, in localities where the coastline is deeply indented and cut into or if there is a fringe of islands along the coast in its immediate vicinity, a straight baseline method may be used to delimit the territorial sea.31 Article 7 of the LOSC further provides other non-geographical factors that may be taken into account in the drawing of straight baselines – such as economic interests peculiar to the region concerned.32 The regime of internal waters constitutes all parts of the ocean space that fall on the landward side of the baseline, be it a normal baseline, a straight baseline, or a baseline established using a combination of both methods.33 This includes waters found within coastal areas enclosed by straight base­ lines, such as bays,34 river mouths,35 estuaries, ports, and harbors,36 and between offshore fringe islands and the mainland.37 On the other hand, the part of the ocean space lying seaward of the baseline (or the archipelagic

28 See generally P Allot, ‘Power Sharing in the Law of the Sea’ (1983) 77 American Journal of International Law 1. 29 It is different in the case of archipelagic States where the waters on the landward side of the baseline (known as the archipelagic baseline) form archipelagic waters instead of internal waters, and the archipelagic baseline separates the archipelagic waters and the territorial sea. 30 LOSC (n 22), Art 5. 31 Ibid., Art 7(1) & (2). 32 Ibid., Art 7(5). For a detailed discussion on baselines, see CG Lathrop, ‘Baseline’ in DR Roth­ well et al. (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 69, 69–90. 33 LOSC (n 22), Arts 8(1), 5, 7 & 14. 34 Ibid., Art 10. 35 Ibid., Art 9. 36 Ibid., Art 11. 37 Ibid., Art 7(1).

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baseline in the case of archipelagic States) constitutes the territorial sea.38 The breadth of the territorial sea was a point of disagreement throughout the history of the law of the sea, but the LOSC recognizes 12 nm as the maxi­ mum permissible limit of the territorial sea39 – with such limit subsequently recognized as customary international law.40 Internal waters and the territorial sea form part of the national territory of a coastal State, and coastal States, therefore, have full sovereignty over these bodies of water. Article 2 of the LOSC provides that the ‘sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of archipelagic States, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea’.41 This sovereignty extends to the air space, water column, and the seabed and subsoil.42 This means that these maritime zones are governed by the principle of territorial sovereignty of States pursuant to which coastal States have complete and exclusive author­ ity. The completeness of the coastal States’ authority manifests in its capacity to exercise all legislative,43 executive, and judicial powers over all matters within those maritime zones and over all persons regardless of their nation­ ality.44 Similarly, the coastal State’s authority is exclusive in the sense that only the coastal State concerned, without interference from any other State or entity, exercises jurisdiction over all activities that occur within its internal waters and territorial sea.45 As a manifestation of its sovereignty, the coastal State has full competence to regulate all activities relating to the use of all types of MLRs found within its internal waters and territorial sea. It has exclusive rights to fully regu­ late the exploration, exploitation, conservation, and management of those resources as it deems appropriate and consistent with its own national envi­ ronmental and resource policies.46 It may issue licenses and permits only to its own nationals to conduct such activities, or it may provide access to foreign nationals by way of bilateral or regional arrangements.47 Unlike the

38 LOSC (n 22), Arts 3 & 48.

39 Ibid., Art 3.

40 JE Noyes, ‘The Territorial Sea and Contiguous Zone’ in DR  Rothwell et al. (eds), The

Oxford Handbook of the Law of the Sea (OUP 2015) 91, 94–95. 41 LOSC (n 22), Arts 2(1) & 49. 42 Ibid., Art 2(2). 43 JE Noyes, The Territorial Sea and Contiguous Zone (n 40) argues that a coastal State has a default legislative competence in the territorial sea since sovereignty implies that ‘a coastal State need not expressly specify that its laws apply in the territorial sea; such an expression of intent is necessary only with respect to laws “peculiar to the territorial sea”, such as those relating to navigation’ (at 96). 44 Y Tanaka, The International Law of the Sea (n 7), 6. 45 Ibid. 46 Rothwell and Stephens, International Law of the Sea (n 3), 70, 75. 47 Ibid., 75.

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EEZ regime, the coastal State has no obligation to give access to the living resources of its internal waters and territorial sea to third States, including land-locked and geographically disadvantaged States.48 Moreover, the coastal State has legislative competence to adopt laws and regulations relating to the conservation of MLRs in the territorial sea,49 as well as enforcement jurisdic­ tion to prevent any infringement of those laws and regulations by vessels in innocent passage.50 Accordingly, a coastal State may board and arrest the crew and may prevent the passage of foreign ships that engage in fishing and other activities that may affect its resource rights in the territorial sea since such activities are considered non-innocent.51 Bestowing such powers on coastal States confirms that a coastal State has full permanent sovereignty over all natural resources (PSNR) located within its internal waters and ter­ ritorial sea.52 3.1.1 Limitations on the sovereignty of coastal States over the territorial sea Unlike the internal waters,53 a coastal State’s sovereignty over the territorial sea is subject to limitations recognized by the ‘[LOSC] and other rules of international law’.54 One express limitation to the sovereignty of a coastal State in the territorial sea relates to its duty to respect the exercise of the right of innocent passage by all other States, regardless of whether they are coastal or land-locked.55 Innocent passage is defined as any passage ‘not prejudicial to the peace, good order or security of the coastal State’.56 It is the right of foreign ships (be it private or governmental commercial ships, warships, or governmental ships operating for non-commercial purposes) to navigate and traverse continuously and expeditiously through the territorial sea with or without entering internal waters or calling at a roadstead or port 48 The exception in this regard is the coastal State’s obligation to recognize existing traditional fishing rights (TFRs) within the territorial sea (see Chapter  8 of this book for a detailed discussion). 49 LOSC (n 22), Art 21(1)(d).

50 Ibid., Art 21(1)(e).

51 Ibid., Arts 19(2)(i) & 25(1). See also P Vrancken, ‘State Jurisdiction to Investigate and Try

Fisheries Crime at Sea’ (2019) 105 Marine Policy 129, 135; K Hakapää and EJ Molenaar, ‘Innocent Passage – Past and Present’ (1999) 23(2) Marine Policy 131, 137. 52 For a detailed discussion on the right to PSNR, see EL Enyew, ‘Application of the Right to Permanent Sovereignty Over Natural Resources for Indigenous Peoples: Assessment of Cur­ rent Legal Developments’ (2017) 8 Arctic Review on Law and Politics 222. 53 Other States do not have a right of innocent passage through the internal waters of a coastal State. 54 LOSC (n 22), Art 2(3). 55 Ibid., Art 17. 56 Ibid., Art 19(1). Article 19(2) of the LOSC provides a non-exhaustive list of activities that may be considered as ‘non-innocent’.

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facility subject to the conditions provided under the LOSC.57 The coastal State’s obligation to recognize the right of innocent passage entails other spe­ cific associated duties to ensure the interests of navigation of foreign vessels. These duties include, inter alia, (i) the duty not to impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage;58 (ii) the duty not to discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State;59 (iii) the duty to give appropriate publicity to any danger to navigation that the coastal State has knowledge;60 and (iv) the duty not to impose a charge upon foreign ships by reason only of their passage except for specific services rendered to the ship.61 ‘Other rules of international law’ outside of the LOSC may also limit or shape the exercise of coastal States’ sovereignty over the territorial sea.62 However, the LOSC does not provide guidance on the scope of the refer­ ence to those external sources of international law. This has led international tribunals to adopt different interpretations of the scope of the renvoi. This point is explored in detail in Chapters 6 and 8 of this book in connection with traditional fishing rights (TFRs). 3.2 The rights and obligations of archipelagic States in archipelagic waters The concepts of archipelagic States and archipelagic waters are new additions to the law of the sea regime. The 1958 Geneva Conventions on the law of the sea contain no provision regarding archipelagic States or archipelagic waters. Even though the recognition of archipelagic States was advocated by Indone­ sia and the Philippines at UNCLOS I and II, their proposals were rejected as the concept was ‘thought to be too complex for solution’ and that the ‘issue is not important enough to consider’ respectively.63 However, through the persistent advocacy of the two States – which later was supported by several other newly independent island states, such as Fiji, Mauritius, Tonga, and Papua New Guinea – the concept of archipelagic States as a special category of States was accepted at UNCLOS III and incorporated under Part IV of the LOSC.64 Article 46(a) of the LOSC defines an archipelagic State as ‘a 57 Ibid., Arts 17, 18 & 19. It is worth noting that the right of innocent passage in the territorial sea does not include the innocent passage of aircrafts (overflight). 58 Ibid., Art 24(1)(a). 59 Ibid., Art 24(1)(b). 60 Ibid., Art 24(2). 61 Ibid., Art 26. 62 Ibid., Art 2(3). 63 RP Anand, Origin and Development of the Law of the Sea (Martinus Nijhoff 1983) 202. 64 For a detailed discussion on the development of the concept of archipelagic States and the role played by a few developing island States in the recognition of such concept, see EL

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State constituted wholly by one or more archipelagos and may include other islands’.65 An ‘archipelago’ is, in turn, defined as a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.66 The LOSC also provides a generous ‘water-land ratio’ and ‘length of base­ lines’ requirements to enable most developing Island States to benefit from the special archipelagic status on the one hand and to exclude certain devel­ oped Island States, such as the UK, Japan, Iceland, Ireland, from claiming archipelagic status on the other.67 Therefore, an archipelagic State is com­ posed of a closely interrelated group of islands,68 which intrinsically form a single geographical, economic, and political entity or whose unity is evi­ denced by historical practice. A State that fulfills the legal definition of ‘archipelagic State’ and that declares itself as such69 is entitled to draw archipelagic baselines from which the breadth of the territorial sea, the contiguous zone, the EEZ, and the continental shelf are measured.70 The waters enclosed by such baselines are known as ‘archipelagic waters’ over which archipelagic States have sover­ eignty.71 The sovereignty of archipelagic States extends not only to the water column but also to ‘the air space over archipelagic waters, as well as to their bed and sub-soil, and the resources contained therein’ regardless of the depth of the waters or their distance from the coast.72 As holders of sovereignty, archipelagic States have exclusive rights to regulate the exploration, exploita­ tion, management, and conservation of all types of resources found within

65 66 67 68 69

70

71 72

Enyew, Sailing with TWAIL (n 2), para.474–476; and T Davenport, ‘The Archipelagic Regime’ in DR Rothwell et al. (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015) 134, 140–142. LOSC (n 22), Art 46(a). Ibid., Art 46(b). Ibid., Art 47(1&2). See also EL Enyew, Sailing with TWAIL (n 2), 477. An island is ‘a naturally formed area of land, surrounded by water, which is above water at high tide’ (LOSC, Art 121(1)). Twenty-two States have formally claimed archipelagic status as of September  2023. See UN DOALOS, Table of Claims and Maritime Jurisdiction, available at: Microsoft Word – Table of claims to maritime jurisdictionAUGUST2010_new_ver3.doc (icdst.org) (accessed September 2023). LOSC (n 22), Art 48. Article 47 of the LOSC provides the various conditions and tests that the drawing of straight archipelagic baselines should satisfy. These rules for the drawing of archipelagic baselines have substantial similarity with the general rules of straight baseline provided under Article 7 of the LOSC. Ibid., Arts 2(1) & 49(1). Ibid., Art 49(1 & 2).

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their archipelagic waters; thus, access to the resources of the archipelagic waters by foreign nationals requires express authorization of the archipelagic State concerned. Thus, like the internal waters and the territorial sea, archi­ pelagic States have the right to PSNR of their archipelagic waters.73 Nonetheless, the sovereignty of archipelagic States over archipelagic waters is exercised subject to certain obligations.74 One such obligation is that archi­ pelagic States recognize the right of navigation (i.e., the right of innocent pas­ sage75 and archipelagic sea lanes passage)76 of other States within archipelagic waters. Another obligation of the archipelagic State is to recognize existing rights and legitimate interests that emanate from existing agreements or rights traditionally exercised by other States. These existing traditional rights include, inter alia, respect for existing submarine cables77 and TFRs of nationals of the adjacent neighboring States.78 These and other rights exercised by other States qualify the sovereignty of archipelagic States over archipelagic waters. Archipelagic States, however, have a right to draw closing lines within their archipelagic waters for the purpose of delimiting internal waters in accordance with Articles 9, 10, and 11 of the LOSC (provisions governing the delimitation of mouths of rivers, bays, and ports).79 The fact that inter­ nal waters may exist within archipelagic waters clearly suggests that archi­ pelagic waters and internal waters of archipelagic States constitute distinct regimes.80 There are at least two main distinctions. First, unlike within archi­ pelagic waters, there is no right of navigation – including innocent passage and archipelagic sea lanes passage – through the internal waters of archi­ pelagic States.81 Second, the obligation of archipelagic States to recognize

73 It is worth noting here that the use of archipelagic baselines as a starting point for measur­ ing maritime zones also enable archipelagic States to control immense areas of ocean space as their EEZ and continental shelf and exercise sovereign rights over the resources. For a detailed discussion of the regime of archipelagic States and waters, see T Davenport, ‘The Archipelagic Regime’ (n 64); M Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea (Martinus Nijhoff 1995). 74 LOSC (n 22), Art 49(3).

75 Ibid., Art 52.

76 Ibid., Art 53. Archipelagic sea lanes passage means ‘the exercise . . . of the rights of naviga­ tion and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone’ (Art 53(3)). 77 Ibid., Art 51(2).

78 Ibid., Arts 47(6) & 51(1).

79 Ibid., Art 50.

80 It is worth noting here that some archipelagic States, such as the Philippines, declared that

the concept of archipelagic waters is similar to the concept of internal waters. However, several States, including the US, protested such understanding of the regime of archipelagic waters (see Y Tanaka, The International Law of the Sea (n 7), 110). 81 CR Symmons, ‘Article 50, Part IV: Archipelagic States’ in A Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Verlag C H Beck oHG 2017) 382.

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existing rights and all other legitimate interests, including TFRs of adjacent neighboring States, within archipelagic waters may not apply within their internal waters.82 Thus, if an archipelagic State draws closing lines for delim­ iting internal waters within archipelagic waters, it can avoid the burden that it would have within its archipelagic waters. In sum, the archipelagic regime of the LOSC is largely a significant innova­ tion. The development of the regime was determined by the exclusive inter­ ests of developing island States, which desired control over interconnecting waters surrounding their insular territory for historical, political, economic, and security reasons. The implementation of the archipelagic regime has also been relatively uncontroversial and, overall, has enjoyed a relatively high level of compliance.83 3.3 The regime of the exclusive economic zone The EEZ is an area beyond and adjacent to the territorial sea whose breadth ‘shall not extend beyond 200 nautical miles from the baseline from which the breadth of the territorial sea is measured’.84 Like archipelagic waters, the EEZ is a new regime under the law of the sea that was introduced and recognized during the negotiation at UNCLOS III and ultimately included in Part V of the LOSC.85 Prior to the recognition of the EEZ, all parts of the ocean space beyond the territorial sea (whose limit was not universally agreed) were regarded as high seas. Thus, the recognition of the new regime of the EEZ eliminates the traditional dualism in the law of the sea.86 One of the rationales for the recognition of the EEZ was the desire to extend the exclusive rights and interests of developing coastal States over offshore natu­ ral resources, most importantly fisheries resources.87 Churchill and Lowe note that the recognition of the EEZ is a reflection of the aspiration of the developing [States] for economic development and their desire to gain greater control over the eco­ nomic resources off their coasts, particularly fish stocks, which in many cases were largely exploited by the distant-water fleets of devel­ oped States.88 82 Ibid.; and Rothwell and Stephens, International Law of the Sea (n 3), 186. The obligation of archipelagic States to recognize TFRs, and the application of this right for indigenous peoples is explored in detail in Chapter 8. 83 For a detailed discussion on implementation, see T Davenport (n 64).

84 LOSC, Arts 55 & 57.

85 See WT Burke, The New International Law of Fisheries (n 6), 37.

86 Churchill and Lowe, The Law of the Sea (n 8), 160.

87 Y Tanaka, The International Law of the Sea (n 7), 120.

88 Churchill and Lowe, The Law of the Sea (n 8), 160–161.

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From the 1960s onwards, this desire for exclusive control of fishery resources manifested itself in the practice of many developing coastal States, notably Latin American States, unilaterally extending their fisheries jurisdiction by establishing a patrimonial sea89 or an EFZ, from which the EEZ regime evolved.90 The recognition of the EEZ was further justified by the expecta­ tion that the inclusion of large parts of the high seas under the coastal State’s exclusive control ‘would address the tragedy of the ocean commons resulting from the unregulated exploitation of marine resources’, and that it ‘would lead to more effective resource management by assigning resource rights to the States which were best placed to regulate them and which valued them most’.91 In short, the EEZ regime ‘represents a revolutionary development in the law of the sea, bringing around one-third of ocean space within coastal State jurisdiction’.92 This revolution has marked ‘a move away from open access to resources and regulation based primarily on flag-State jurisdiction, to near-exclusive coastal State access to resources and regulation based primar­ ily – though not exclusively – on coastal States jurisdiction’ up to 200 nm.93 At the same time, however, the EEZ is a zone where the legitimate interests of other States, such as certain high seas freedoms, are recognized. Therefore, the EEZ constitutes a sui generis regime (constituting neither part of the ter­ ritorial sea nor part of the high seas) that deals with the sovereign rights, jurisdictions, and duties of the coastal State as well as the rights and freedoms of other States.94 The following subsections discuss the various rights and obligations of coastal States with respect to the MLRs of the EEZ. 3.3.1 The sovereign rights of coastal States in the EEZ A coastal State has ‘sovereign rights for the purpose of exploring and exploit­ ing, conserving, and managing the natural resources’ of the EEZ.95 Such 89 FV Garcia-Amador, ‘The Latin American Contribution to the Development of the Law of the Sea’ (1974) 68(1) AJIL 33. 90 For a detailed discussion on the development of the EEZ concept and the role of developing States in such development, see EL Enyew, Sailing with TWAIL (n 2), 478–480; WT Burke, The New International Law of Fisheries (n 6), 1 & 15–18. 91 Rothwell and Stephens, The International Law of the Sea (n 3), 82. 92 Ibid.; and L Juda, ‘The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique’ (1997) 28(2) Ocean Development and Interna­ tional Law 147, 148. 93 Churchill and Lowe, The Law of the Sea (n 8), 176. The EEZ regime has become part of customary international law (see Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgement) [2012] ICJ Rep 624, [118]). 94 LOSC (n 22), Art 55. See also generally S Oda, ‘Fisheries Under the United Nations Conven­ tion on the Law of the Sea’ (1983) 77(4) American Journal of International Law 739. 95 Ibid., Art 56(1)(a).

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sovereign rights extend to all the natural resources, whether living or non­ living, of the seabed and subsoil,96 the waters superjacent to the seabed, and other economic activities of the zone, such as the production of energy from the water, currents, and winds.97 Nonetheless, the LOSC does not define the scope of the coastal State’s sovereign rights. Burke observes that the actual meaning of the term ‘sovereign rights’ signifies that the coastal State has ple­ nary jurisdiction with respect to all matters mentioned in connection with the term.98 In other words, unlike territorial sovereignty, sovereign rights are limited to certain matters defined by international law – a limitation ratione materiae. Thus, the coastal State’s sovereign rights relate only to the natural resources of the EEZ, and they encompass all rights and jurisdictions neces­ sary for – and connected with – the exploration, exploitation, conservation, and management of those resources.99 Burke argues that by virtue of its sov­ ereign rights over the EEZ resources: The coastal State has final authority to choose one way or another regarding access to, and use of, living resources of the zone, whatever its obligations may be to consult with others or to take account of specific considerations, factors, views, or evidence. It is not inconsistent with the notion of sovereign rights that the coastal State has duties and obligations in their exercise and nevertheless has the final right to exercise a claim.100 Thus, the coastal State has exclusive and plenary authority with respect to MLRs. This authority also extends to the coastal State’s exclusive jurisdiction with respect to matters that facilitate the exercise of its sovereign rights to explore, exploit, conserve, and manage the natural resources of the EEZ – such as the jurisdiction to construct, authorize, and regulate the construction, operation, and use of artificial islands, installations, and structures.101 The South China Sea Arbitration provides further clarifications to the con­ tent of the coastal State’s sovereign rights over the EEZ living resources in terms of the corresponding obligations of other States. The Tribunal held that the sovereign rights of the coastal State over the living resources of the 96 Articles 56(3) and 68 of the LOSC indicate that due to the areal overlap between the EEZ and the continental shelf, the sovereign rights of the coastal State – with respect to the natural resources of the seabed and the subsoil – should be exercised in accordance with the provisions regulating the continental shelf (Part VI of the LOSC). 97 Ibid., Art 56(1)(a).

98 WT Burke, The New International Law of Fisheries (n 6), 39.

99 The M/V Virginia G Case (Panama v Guinea-Bissau) (Judgement) [2014] ITLOS Rep 4,

[211]. See also D Anderson, ‘The Regulation of Fishing and Related Activities in Exclu­ sive Economic Zone’ in V Lowe (ed.), Modern Law of the Sea: Selected Essays (Martinus Nijhoff 2008) 209, 212. 100 WT Burke, The New International Law of Fisheries (n 6), 39 (emphasis added). 101 LOSC (n 22), Arts 56(1)(b) & 60.

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EEZ means that other States cannot prevent or interfere with the explora­ tion, exploitation, conservation, and management activities of the coastal State within the zone.102 Additionally, the Tribunal concluded that giving full effect to the sovereign rights of the coastal State over the living resources of its EEZ requires that other States take appropriate measures necessary to ensure that their nationals (vessels flying their flag) comply with the conser­ vation measures of living resources adopted by the coastal State, and to pre­ vent their nationals from unlawfully exploiting the living resources of such coastal State – the duty of ‘due diligence’.103 The sovereign rights of a coastal State over the living resources in its EEZ enable the coastal State to exercise both legislative (prescriptive) and enforce­ ment jurisdiction. Article 62(4) of the LOSC expressly provides for the com­ petence of the coastal State to adopt laws and regulations which specify the necessary conservation measures and other terms and conditions relating to foreign access. Accordingly, the coastal State may enact laws and regulations with respect to, inter alia, the licensing requirements for fishermen and fish­ ing vessels; specifying the types, age. and size of fish that may be caught and the corresponding catch limit; regulating seasons and areas of fishing; and specifying the type, size, and amount of fishing gear and fishing vessels.104 Since Article 62(4) of the LOSC provides a non-exhaustive list of matters where a coastal State can enact laws, the provision offers the coastal State the broadest possible basis for exercising prescriptive jurisdiction with respect to other related matters.105 As expressly provided for in Article 73 of the LOSC, any violation of the relevant rules of the LOSC or any of the fishery laws and regulations adopted by the coastal State consistent with the Convention also gives rise to the enforcement jurisdiction of a coastal State. Indeed, it is natural for a coastal State with sovereign rights over natural resources to take measures neces­ sary to protect those resources from illegal exploitation.106 Thus, pursuant to 102 South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China), Arbitral Tribunal Constituted under Annex VII of the 1982 United Nations Con­ vention on the Law of the Sea, PCA, Award on the Merits (12 July 2016), [700]. 103 Ibid., [744]. For a similar conclusion, see Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (Advisory Opinion) [2015] ITLOS Rep 4, [120]. ITLOS made clear that the ‘due diligence’ obligation is an obligation of conduct rather than an obligation of result [129]. 104 LOSC (n 22), Art 62(4). 105 For a discussion on the coastal State’s prescriptive and enforcement jurisdiction in the EEZ, see C Goodman, ‘Striking the Right Balance? Applying the Jurisprudence of International Tribunals to Coastal State Innovations in International Fisheries Governance’ (2017) 84 Marine Policy 293. 106 In the Virginia G Case, ITLOS held that the coastal State’s enforcement jurisdiction in the EEZ extends to activities ‘directly connected’ with fishing – all support activities that enable fishing vessels to continue their fishing without interruption at sea are considered to have direct connection with fishing. These activities include, inter alia, bunkering (refueling),

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Article 73, a coastal State may take different enforcement measures, including ‘boarding, inspection, arrest and judicial proceedings’.107 The coastal State can also take the same types of enforcement measures based on its right of hot pursuit in cases where fishing vessels attempt to escape the enforcement measures of a coastal State.108 Since the types of enforcement measures listed under Article 73 of the LOSC are not exhaustive, the coastal State may take other measures it deems appropriate and ‘necessary to ensure compliance with [its] laws and regulations’ adopted consistent with the LOSC.109 The issue of whether the measure used by the coastal State is ‘necessary’ to ensure compliance with the coastal State’s fisheries laws and regulations – which should be assessed on a case-by-case basis – is the main criterion for limiting the types of coastal State enforcement measures.110 The LOSC puts certain express restrictions on the manners in which the coastal State may exercise its enforcement rights. First, when the coastal State arrests a foreign vessel, it shall promptly notify the flag State, and the ‘[a]rrested vessels and their crews shall be promptly released upon the post­ ing of reasonable bond or other security’.111 Second, even if the coastal State establishes a violation of its fisheries regulations, the form of punishment taken ‘may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment’.112 The requirements of prompt release and prohibitions against imprisonment and other forms of corporal punishment of arrested persons relate to the human rights considerations of such persons (see Chapter 6 of this book for details). In sum, once the coastal State claims an EEZ,113 it acquires exclusive sov­ ereign rights over the natural resources found therein, which affords it

107

108

109 110

111 112 113

transshipment, processing, packaging, and the supply of personnel. See The M/V Virginia G Case (n 99), [215–219 & 222–223]. Oda argues that the jurisdiction of the coastal State to enforce its fisheries regulations in its EEZ is ‘in nature equivalent to that in the territorial sea’ with no limit ratione personae. See S Oda, Fisheries (n 94), 747. LOSC (n 22), Arts 58(2) & 111(2). See also Arctic Sunrise Arbitration (The Kingdom of Netherlands v The Russian Federation), Arbitral Tribunal Constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea, PCA, Award on the Merits (14 August 2015), [245] & more generally [246–275]; and P Vrancken, State Jurisdiction (n 51); and CH Allen, ‘Doctrine of Hot Pursuit: A  Functional Interpretation Adaptable to Emerging Maritime Law Enforcement Technologies and Practices’ (1989) 20(4) Ocean Development and International Law 309. LOSC (n 22), Art 73(1). For a detailed discussion of a coastal State’s enforcement powers under Art 73 of the LOSC, see The M/V Virginia G Case (n 99), [251–271 & 283–311]; and J Harrison, ‘Article 73 LOSC, Part V: Exclusive Economic Zone’ in A Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Verlag C H Beck oHG 2017) 556–563. LOSC (n 22), Arts 73(4) & (2). Ibid., Art 73(3). Unlike the continental shelf, which is inherent to the coastal State in the sense that it is not dependent on occupation or any express proclamation, the EEZ regime must be claimed by

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jurisdiction to enact and enforce relevant legislation. Yet, the sovereign rights of the coastal State are subject to several obligations. 3.3.2 The obligations of coastal States in the EEZ 3.3.2.1 THE OBLIGATION TO HAVE ‘DUE REGARD’ TO THE RIGHTS OF OTHER STATES

The exercise by the coastal State of its sovereign rights and jurisdiction over its EEZ may conflict with the rights and freedoms of other States.114 For example, the coastal State’s exercise of its sovereign rights to explore, exploit, conserve, and manage the living resources of its EEZ may conflict with the freedom of navigation exercised by other States. To deal with these potentially conflict­ ing rights and freedoms in the EEZ, Article 56(2) of the LOSC obliges coastal States to have ‘due regard to the rights and duties of other States’. Nonethe­ less, the Convention does not define the actual content of the coastal State’s duty to have ‘due regard’ for the rights of other States. In the Chagos Arbitra­ tion, the Annex VII Tribunal concluded that there is no ‘universal rule of con­ duct’ to assess the coastal State’s compliance with its obligation to ‘have due regard’ for the rights of other States.115 The extent of the coastal State’s regard for other States will depend upon the nature of the rights held by such other States, their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the coastal State, as well as the availability of alternative approaches.116 However, the Tribunal did indicate the minimum action expected of coastal States that emanate from the ‘due regard’ obligation. It concluded that the ‘due regard’ obligation requires the coastal State to engage in ‘consultation with the right holding-State’,117 which involves ‘a balancing exercise with its own rights and interests’ before taking any action which may adversely affect the other State’s rights/freedoms.118 In other words, the ‘due regard’ standard involves the act of balancing the interests at stake and judging the permissibility of restrictions in terms of that standard.119

the coastal State to establish sovereign rights over the natural resources of the zone (ibid., Art 77(3)). 114 Art 58(1) of the LOSC provides the rights and freedoms of other States in the EEZ, which includes the freedoms of navigation and overflight, the laying of submarine cables and pipe­ lines, and other internationally lawful uses of the sea related to these freedoms. 115 Chagos Arbitration (The Republic of Mauritius v The United Kingdom of Great Britain and Northern Ireland), Arbitral Tribunal Constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea, PCA, Award on the Merits (18 March 2015), [519]. 116 Ibid., [519]. 117 Ibid. 118 Ibid., [534]. 119 See WT Burke, The New International Law of Fisheries (n 6), 326; SN Nandan et al. (eds), United Nations Convention on the Law of the Sea, 1982: A Commentary: Vol. 2: Articles 1 to 85, Annexes I and II, Final Act, Annex II (Martinus Nijhoff 1993) 543.

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The LOSC also imposes a reciprocal ‘due regard’ obligation on all other States exercising their freedoms in the EEZ. Article 58(3) of the LOSC requires other States, in the exercise of their rights and performing their duties in the EEZ, to have due regard to the rights and duties of the coastal State and shall com­ ply with the laws and regulations adopted by the coastal State in accord­ ance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this part [part V].120 Yet, like Article 56(2), Article 58(3) does not clarify the extent of the regard required from such other States. With respect to the specific context of fishing by the nationals of other States within a coastal State’s EEZ, both the South China Sea Arbitral Tribunal and ITLOS have held that the duty of other States to have ‘due regard’ for the rights of the coastal State provided under article 58(3) LOSC, is a ‘due diligence’ obligation.121 It is an obliga­ tion of other States to take all appropriate measures necessary to ensure that their nationals (vessels flying their flag) comply with the laws and regulations adopted by the coastal State in conformity with the LOSC and to prevent them from unlawfully exploiting the living resources of the coastal State.122 Thus, the ‘due diligence’ obligation is an obligation of conduct rather than one of result – i.e., it is an obligation of other States ‘to take all necessary measures to ensure compliance’, rather than being an obligation to achieve compliance, with the laws and regulations of the coastal State.123 In sum, the mutual ‘due regard’ obligation helps to reconcile and balance the sovereign rights of the coastal State over natural resources with the rights and freedoms of other States.124 As such, the ‘due regard’ test is a component of the principle of good faith, which requires rights to be exercised reason­ ably and by taking into account the interests of others.125 Disregarding the rights and freedoms of other States by the coastal State in the exercise of its own sovereign rights, and vice versa, would amount to an abuse of rights contrary to the principle of Article 300 of the LOSC.126 However, there is no clear objective rule as to whether the coastal State’s sovereign rights or the 120 LOSC (n 22), Art 58(3) (emphasis added).

121 South China Sea Arbitration (n 102), [757]; ITLOS Fisheries Advisory Opinion (n 103),

[119–120]. 122 South China Sea Arbitration, [744]; ITLOS Fisheries Advisory Opinion, [120]. 123 ITLOS Fisheries Advisory Opinion, [129]. 124 For a detailed discussion of the ‘due diligence’ standard, see N Matz-Lück and E van Doorn, ‘Due Diligence Obligations and the Protection of the Marine Environment’ (2017) 42 L’Observateur des Nations Unies 169–187. 125 D Anderson, ‘Freedom of High Seas in the Modern Law of the Sea’ in V Lowe (ed.), Mod­ ern Law of the Sea: Selected Essays (Martinus Nijhoff 2008) 229, 234–235. 126 Ibid., 235.

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rights and freedoms of other States should be given priority in this balancing exercise.127 3.3.2.2 THE OBLIGATION TO CONSERVE AND MANAGE MLRS

Coastal States not only have a sovereign right to explore and exploit but also an obligation to conserve and manage the living resources of their EEZ.128 Indeed, one of the main justifications for the recognition of the EEZ regime is the expectation that the allocation of large areas of the ocean space – previ­ ously part of the high seas – to coastal States would give them an incentive to properly manage and conserve the living resources found therein. Article 61 of the LOSC provides the general obligations of the coastal State with respect to the conservation and management of the living resources of its EEZ. In particular, Article 61(2) stipulates that ‘the coastal State . . . shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation’.129 Further, Article 61(3) provides that such conservation and management measures ‘shall be designed to maintain and restore populations of harvested species at levels which can produce the maximum sustainable yield’.130 Thus, the core objectives of a coastal State’s obligation to take ‘proper conservation and management measures’ are to prevent over-exploitation of the living resources of the EEZ and to maintain or restore populations of harvested species at a sustainable level. Nonetheless, the LOSC does not define what constitutes ‘proper conserva­ tion and management measures’.131 Burke notes that the concept of ‘conser­ vation and management’ is very broad and embraces ‘all the activities that

127 Article 59 of the LOSC provides a general formula for resolving possible conflicts over residual rights – rights and jurisdictions that are not expressly attributed to the coastal State or to other States by the LOSC. If a conflict over attribution of such rights arises, it ‘should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole’. 128 The phrase ‘sovereign rights for the purpose of .  .  . conserving and managing natural resources’ under Article 56(1)(a) of the LOSC suggests that conservation and management of the living resources of the EEZ is a right rather than a duty. However, as this section demonstrates, Articles 61 and 62 also impose obligations on the coastal State. 129 LOSC (n 22), Art 61(2) (emphasis added).

130 Ibid., Art 61(3) (emphasis added).

131 Article 2 of the 1958 Geneva Convention on Fishing and Conservation of the Living

Resources of the High Seas provides a definition-like provision. It states that ‘the expres­ sion “conservation of the living resources of the high seas” means the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products. Conservation programmes should be formulated with a view to securing in the first place a supply of food for human consumption’.

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bear on deciding about the wise use and disposition of living resources’.132 Thus, the coastal State has wide discretion to decide any conservation and management measures it deems appropriate in the particular circumstances. However, the coastal State should take into account different qualifying environmental and economic factors.133 These factors include, inter alia, the economic needs of coastal fishing communities, the special requirements of developing States, fishing patterns, the interdependence of stocks, and any generally recommended international minimum standards.134 Therefore, tak­ ing into account these and other relevant factors, the coastal State shall freely design any proper conservation and management measures. The determination of the total allowable catch (TAC) of the living resources of its EEZ is the first essential step and basic obligation of the coastal State as part of any proper conservation and management measures.135 However, although determining the TAC is one means of managing the exploitation of the living resources of the EEZ, such a measure alone is insufficient.136 The coastal State should, therefore, supplement the TAC with other specific conservation measures. In this regard, Article 62(4) of the LOSC provides a non-exhaustive list of specific conservation and management measures that a coastal State may adopt. These measures include, inter alia, measures related to the licensing of fishermen and fishing vessels;137 the determination of the species which may be caught and fixing of catch quotas (whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time);138 regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes, and number of fishing vessels that may be used;139 and fixing the age and size of fish and other species that may be caught.140 The coastal State may also introduce any form of property rights-based management systems, including individual transferable quotas (ITQs)141 and

132 133 134 135

136 137 138 139 140 141

WT Burke, The New International Law of Fisheries (n 6), 41.

LOSC (n 22), Art 61(3).

Ibid., Art 61(3).

Ibid., Art 61(1). The determination of the TAC of the living resources in the EEZ is the

exclusive sovereign right of the coastal State concerned. Hence, no other State, or entity or international organization may undertake such task (see WT Burke, The New International Law of Fisheries (n 6), 44–46). Ibid.

LOSC (n 22), Art 62(4)(a).

Ibid., Art 62(4)(b).

Ibid., Art 62(4)(c).

Ibid., Art 62(4)(d).

Various types of ITQs exist with different names and forms, such as Individual Fishing

Quotas (IFQs) and Individual Vessel Quotas (IVQs). See generally D Symes and K Crean, ‘Privatization of the Commons: The Introduction of Individual Transferable Quotas in Developed Fisheries’ (1995) 26 Geoforum 175.

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territorial use rights for fisheries (TURF)142 or area-based management tools (ABMTs),143 including marine protected areas (MPAs).144 In conclusion, the obligation of the coastal State to conserve and manage the living resources of its EEZ by taking proper conservation measures is the core obligation associated with the sovereign right of the coastal State over those resources. The basic conservation and management rules provided under Article 61 of the LOSC have general application to all types of MLRs of the EEZ, including marine mammals. Parallel to their conservation duties, coastal States also have an obligation to ensure the optimum utilization of the living resources of the EEZ. 3.3.2.3 THE OBLIGATION TO GIVE ACCESS TO FOREIGN NATIONALS TO SURPLUS RESOURCES

Without prejudice to its sovereign right to exploit and subject to its duty to conserve the living resources of its EEZ, the coastal State is required to pro­ mote the objective of optimum utilization of those resources except marine mammals.145 Optimum utilization requires the coastal State to give access to nationals of other States to exploit the living resources of the EEZ that are 142 See CNT Quynh et al., ‘Territorial Use Rights for Fisheries (TURFs): State of the Art and the Road Ahead’ (2017) 75 Marine Policy 41; R Barnes, Property Rights and Natural Resources (Hart 2009). 143 Since both the LOSC and the UNFSA do not expressly require States to adopt area-based management tools (ABMTs) to achieve the conservation of MLRs, neither of them offers a universally accepted definition of ABMTs. More generally, ABMTs can be understood as a spatially defined marine area where all or some human activities are regulated at a more stringent level than in the surrounding marine area. See Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ treaty), adopted on 19 June  2023, the Art 1; and KJ Marciniak, ‘New Implementing Agreement Under UNCLOS: A Threat or an Opportunity for Fisheries Governance?’ (2017) 84 Marine Policy 320, 322. 144 The Convention on Biological Diversity (CBD) defines a ‘protected area’, which includes MPAs, as a ‘geographically defined area which is designated or regulated and managed to achieve specific conservation objectives’ (see Convention on Biological Diversity, concluded at Rio de Janerio on 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993), Art 2). Article 8(a) of the CBD further provides a specific legal basis for coastal States to establish an MPA within waters under their national jurisdiction. On the other hand, the LOSC does not expressly provide for the creation of MPAs. However, the Chagos Award recognizes that the establishment of an MPA can be justified for the conservation of living resources as a manifestation of a coastal States’ sovereign rights over natural resources under Article 56, as well as for the protection of the marine environment pursuant to Arti­ cle 194(5) of the LOSC. See Chagos Arbitration (n 115), [291 & 538]. For a detailed dis­ cussion of different categories and the various purposes of MPAs, see IU Jakobsen, Marine Protected Areas in International Law: An Arctic Perspective (Brill Nijhoff 2016). 145 LOSC (n 22), Arts 62(1) & 65.

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surplus to its own national requirements under certain conditions. Article 62(2) of the LOSC provides that: The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws, and regulations referred to in paragraph 4, give other States access to the sur­ plus of the allowable catch.146 The determination of the TAC of a fish stock and the coastal State’s capac­ ity to harvest such stock are important prerequisites for any assessment of the existence of a surplus. If such assessment shows that the coastal State does not have sufficient capacity to harvest the entire allowable catch it has determined, it should give access to other States to exploit the surplus of the allowable catch.147 This foreign access rule aims to accommodate the inter­ ests of States affected by the inclusion of marine areas that were formerly regarded as high seas open to fishing by all States and which are now under the exclusive control of coastal States.148 Accordingly, the LOSC requires the coastal State, when allocating any surplus, to give special preference to those States whose nationals have habitually fished in the zone149 and to land-locked150 and geographically disadvantaged States151 in the sub-region or region.152 Nonetheless, the actual implementation of the right of other States to access the surplus EEZ resources depends largely on the discretion of the coastal State concerned. The coastal State’s discretion manifests itself in sev­ eral ways. First, the coastal State has wide discretion in determining the TAC in the sense that it ‘could legitimately set practically any size of allowable Ibid., Art 62(2) (emphasis added).

Ibid., Arts 62(2), 69 & 70.

See EL Enyew, Sailing with TWAIL (n 2), 480–481.

LOSC (n 22), Art 62(3). The primary aim of this consideration is to ‘minimize economic

dislocation’ in those States traditionally fishing in the area. 150 A ‘land-locked State’ is defined as ‘a State which has no seacoast’ (ibid., Art 124(1)(a)). 151 The LOSC defines ‘Geographically Disadvantaged States’ as ‘coastal States, including States bordering enclosed or semi-enclosed seas, whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the sub-region or region for adequate supplies of fish for the nutritional pur­ poses of their populations or parts thereof, and coastal states which can claim no exclusive economic zones of their own’ (ibid., Art 70(2)). 152 The right of land-locked and geographically disadvantaged States to access the surplus EEZ resources of coastal States of the same region or sub-region, is specifically regulated under Articles 69 to 72 of the LOSC. These provisions deal with the different conditions and fac­ tors that a coastal State must consider in granting access to land-locked and geographically disadvantaged States, as well as the limitations to the rights of these States. 146 147 148 149

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catch as long as it did not lead to over-exploitation which endangered fish stocks’.153 This, in turn, will have a limiting effect on the identification of surplus resources accessible by other States. Second, before giving access to other States to the surplus resources of its EEZ (if any surplus is identified), the coastal State is entitled – under Article 62(3) – to take into account a wide range of relevant factors including, inter alia, ‘the significance of the living resources of the area to the economy of the coastal State concerned, and its other national interests’.154 The phrases ‘economy of the coastal State’ and ‘other national interests’ are general and are not defined by the Convention. The determination of these matters lies solely with the coastal State.155 The coastal State can interpret these generic terms expansively to exclude access to its EEZ resources by nationals of other States. Similarly, the coastal State has considerable discretion to determine whether the grant­ ing of access to land-locked and geographically disadvantaged States has a detrimental effect on its own fishing communities and fishing industries.156 Hence, the determination of all criteria (factors) relevant to permitting or denying access to the resources of its EEZ rests with the goodwill of the coastal State concerned. Third, even when the coastal State decides to permit access to other States to exploit the surplus living resources of its EEZ, it still maintains the ultimate power to establish any conservation measures and other terms and conditions relating to such access.157 The terms and conditions set by the coastal State may be very onerous. For example, the coastal State may set conservation measures, terms, and conditions relating to the licensing requirements, fishing vessels, and equipment – including payment of fees and other forms of remuneration;158 requirements relating to the types, sizes, and amount of gear, and the types, sizes, and number of fishing vessels that may be used;159 requirements relating to the conduct of specific fisheries research programs;160 the terms and conditions relating to joint ventures or other cooperative arrangements;161 and the training of personnel and the transfer of fisheries technology – including enhancement of the coastal State’s capa­ bility of undertaking fisheries research.162 Such requirements, measures, and conditions may all turn out to be costly and difficult to satisfy. These meas­ ures, terms, and conditions may make the rights of other States to exploit the 153 154 155 156 157 158 159 160 161 162

Churchill and Lowe, The Law of the Sea (n 8), 289.

LOSC (n 22), Art 62(3) (emphasis added).

WT Burke, The New International Law of Fisheries (n 6), 65.

LOSC (n 22), Arts 69(2)(a) & 70(3)(a) (emphasis added).

Ibid., Arts 62(4), 69(2) & 70(3).

Ibid., Art 62(4)(a).

Ibid., Art 62(4)(c).

Ibid., Art 62(4)(f).

Ibid., Art 62(4)(i).

Ibid., Art 62(4)(j).

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surplus living resources of the EEZ ‘tenuous and largely dependent on how much a coastal State is prepared to concede in negotiating an agreement’.163 Finally, the discretionary power of the coastal State not to allocate sur­ pluses to other States is protected through the exceptions to the compulsory dispute settlement procedures set out in Part XV of the LOSC. Article 297(3) provides that the compulsory dispute settlement procedures of the LOSC do not apply to disputes concerning the interpretation or application of the pro­ visions of the Convention regarding fisheries, in particular disputes relating to the coastal State’s sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.164 Thus, other States do not have any workable remedy if a coastal State refuses to determine the allowable catch and its capacity to harvest the liv­ ing resources that other States are interested in fishing. The same is true if a coastal State refuses to allocate to other States the whole or part of the surplus it has declared to exist or make the conditions of access onerous.165 The only available option to resolve disputes relating to such issues is the use of ‘any peaceful means chosen by the parties’166 or through conciliation under Annex V of the LOSC.167 Again, however, the acceptance of such procedures depends on the discretion of the coastal State concerned, and even when it accepts the conciliation procedure, the report of the concili­ ation commission can neither bind nor substitute for the discretion of the coastal State.168 To sum up, although a coastal State has an obligation to give access to other States to harvest the surplus living resources of its EEZ, the practical application of such a duty is difficult to enforce. This is mainly due to the vague nature of the obligation and because the determination of the fulfill­ ment of the different stringent conditions provided under the LOSC rests upon the ultimate discretion of the coastal State concerned. Indeed, ‘a right 163 Churchill and Lowe, The Law of the Sea (n 8), 439.

164 LOSC (n 22), Art 297(3)(a) (emphasis added).

165 For a detailed discussion on foreign access, see WT Burke, ‘The Law of the Sea Convention

Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction’ (1984) 63 Oregon Law Review 71. 166 LOSC (n 22), Art 280. 167 Ibid., Arts 284 & 297(3)(b). 168 Ibid., Art 297(3)(c). See also Art 297(2)(b) of the LOSC with respect to a coastal State’s sovereign rights to allow or deny the conduct of marine scientific research by other States within its EEZ.

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which is dependent on [wide] discretionary powers is mostly an illusion’.169 The significance of the broad discretionary powers of the coastal State to recognize the rights of indigenous peoples to harvest MLRs of the EEZ is discussed in detail in Chapter 6 of this book. 3.3.3 Species-specific conservation and management obligations The general zonal approach of conservation and management of living resources of the EEZ is accompanied by species-specific conservation and management regulations because of the special characteristics of certain species. These species include shared fish stocks, straddling and highly migratory fish stocks, marine mammals, and anadromous and catadro­ mous fish stocks. Shared fish stocks are those stocks that migrate between ‘the exclusive economic zones of two or more coastal States’.170 For proper management of such stocks, the coastal States, within whose EEZs such stocks occur, ‘shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the measures necessary to coor­ dinate and ensure the conservation and development of such stocks’.171 The LOSC does not, however, provide any detailed guidance regarding the types of measures that the concerned coastal States shall adopt to effectively manage shard stocks. Thus, the States concerned are free to determine the type of arrangements and the details of the conservation and management measures they believe are appropriate and consistent with their respective sovereign rights and general obligations enunciated in Articles 61 and 62 of the LOSC. Articles 63(2) and 64 of the LOSC respectively deal with the conservation and management of straddling fish stocks172 and highly migratory species.173 Article 63(2) provides that the coastal State and the States fishing for strad­ dling stocks in the adjacent high seas ‘shall seek, either directly or through appropriate sub-regional or regional organizations, to agree upon the meas­ ures necessary for the conservation of these stocks in the adjacent area’.174 It is evident that this obligation to cooperate relates only to the conservation and management measures to be taken in respect of the high seas (adjacent 169 WT Burke, The New International Law of Fisheries (n 6), 74.

170 LOSC (n 22), Art 63(1). This normally happens when two or more coastal States have

overlapping EEZs. 171 Ibid., Art 63(1). 172 Straddling fish stocks are those stocks that occur both within the EEZ of the coastal State and the adjacent high seas (Art 63(2) LOSC). 173 Highly migratory species are those species that migrate considerable distances during their life cycle both through the EEZs of two or more States and through the high seas. Annex I  to the LOSC provides a list of highly migratory species, which includes tuna, marlins, swordfish, and cetaceans. 174 LOSC (n 22), Art 63(2) (emphasis added).

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area of the EEZ) and not in respect of the EEZ, for the determination of proper conservation measures in the latter maritime zone is the exclusive sovereign right of the coastal State.175 The principal aim of this provision is to balance the interests of the coastal State with respect to stocks straddling the EEZ and the rights of other States fishing such stocks in the adjacent high seas. Yet, the Convention does not provide any remedy in the event that the States fishing straddling stocks on the high seas adjacent to the EEZ refuse to enter into an agreement with the coastal State concerned.176 Article 64 of the LOSC imposes a similar obligation on the coastal State and other States whose nationals fish in the region for highly migratory species to ‘cooper­ ate .  .  . with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone’.177 In addition to these brief provi­ sions of the LOSC, the UN Fish Stocks Agreement (UNFSA) as a whole also applies to the conservation and management of straddling and highly migra­ tory fish stocks. The LOSC also provides a specific provision dealing with the conserva­ tion and management of marine mammals in the EEZ. Article 65 allows coastal States and appropriate international organizations ‘to prohibit, limit or regulate the exploitation of marine mammals more strictly than [the gen­ eral conservation rules provided under the EEZ regime]’.178 This provision also requires States to cooperate, through appropriate international organi­ zations, for the conservation, management, and study of marine mammals. Beyond this, the provision does not provide comprehensive regulation for marine mammals. Finally, Articles 66 and 67 of the LOSC deal with the conservation of anadromous179 and catadromous180 species. Article 66 pro­ vides that States in whose rivers anadromous stocks originate (the States of origin) ‘shall have the primary interest in and responsibility for such stocks’.181 With respect to catadromous species, Article 67 provides that ‘a coastal State in whose waters catadromous species spend the greatest part of their life cycle [the host State] shall have responsibility for the management

175 Churchill and Lowe, The Law of the Sea (n 8), 305. 176 One possible solution is to submit the matter to the compulsory dispute settlement proce­ dures of the LOSC, as disputes concerning high seas fisheries are not exempted from such compulsory dispute settlement procedures. 177 LOSC (n 22), Art 64(1) (emphasis added). 178 Ibid., Art 65. 179 Anadromous stocks are those stocks that spawn in freshwaters but spend most of their life in the sea (LOSC, Art 66(1)). Salmon is the principal and a commercially significant type of anadromous species. 180 Catadromous species are those species, such as eel, ‘which spawn in the ocean and migrate to fresh water for most of their lives before returning to the ocean to reproduce’ (Art 67(1) LOSC). 181 Ibid., Art 66(1)(2).

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of these species’.182 This means that the States of origin and the host States have exclusive rights to, first, ensure the conservation and management of anadromous and catadromous stocks, respectively, by adopting appropri­ ate measures and, second, to determine whether they should give access to other States to the surplus of such stocks in their EEZ consistent with Articles 61 and 62 of the LOSC.183 In cases where anadromous and cata­ dromous stocks migrate into or through the EEZ of a State other than the State of origin or the host State, respectively, the management, including harvesting, of such fish stocks is to be regulated through cooperation and agreement between the States concerned.184 Such agreement shall ensure the rational management of the species and take into account the respon­ sibilities of the State of origin and the host State for the maintenance and conservation of such species.185 In sum, the species-specific rules of the LOSC emphasize the special char­ acteristics of certain species as well as the special interests of certain States (i.e., the coastal State, the State of origin, or the host State) in managing such stocks. They also emphasize cooperative conservation and management strategies whereby States are required to cooperate either directly or through an appropriate international organization (be it regional or sub-regional). The type and nature of conservation measures, as well as the form of cooper­ ation, varies depending on the type of species. Some of the mentioned species, specifically marine mammals, are of particular interest to indigenous peoples and are explored in detail in Chapter 7. 4. The freedom of fishing on the high seas and the duties of high seas fishing States The high seas consist of all parts of the ocean space beyond the 200 nm of the EEZ.186 The high seas are open to all States, whether coastal or land-locked, and ‘no State may validly purport to subject any part of the high seas to its sovereignty’.187 This follows from the principle of the freedom of the high seas,188 where all States are free to use this maritime zone, and legislative and enforcement jurisdiction lies exclusively with the flag State.189 Ibid., Art 67(1).

Ibid., Art 66(2) & 67(2).

Ibid., Arts 66(4) & 67(3).

Ibid., Arts 66(5) & 67(3).

Ibid., Art 86.

Ibid., Arts 87 & 89.

Article 87 of the LOSC provides a list of the freedoms of the high seas which includes the

freedom of navigation, the freedom of overflight, the freedom to lay submarine cables and pipelines, the freedom to construct artificial islands and other installations permitted under international law, the freedom of fishing, and the freedom of scientific research. 189 LOSC (n 22), Art 92. 182 183 184 185 186 187 188

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Freedom of fishing is one of the cardinal principles associated with the freedom of the high seas. It is the right of nationals of all States to exploit the living resources of the high seas without interference from any other State.190 This freedom of fishing has traditionally applied to all types of liv­ ing resources without exception and without restriction regarding the type of fishing gear and fishing vessels used.191 Thus, at least in principle, no State other than the flag State has the competence to adopt and enforce fishery regulations upon vessels fishing on the high seas. Any attempt at exercising such competence by other States will be a clear violation of the basic princi­ ple of the freedom of fishing.192 Nonetheless, the exercise of the freedom of fishing is not absolute and is exercised subject to certain restrictions. There are at least four relevant fac­ tors that limit the freedom of fishing on the high seas. First, the freedom of fishing is qualified by the obligation of all States to have ‘due regard’ to the freedoms of other States on the high seas. Article 87(2) of the LOSC provides that all States shall exercise their freedom of fishing on the high seas ‘with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area’.193 This obligation to have ‘due regard’ for the rights of other States is a general limitation imposed on all States fish­ ing on the high seas, even though the actual content of the obligation is not clearly defined.194 Second, the freedom of fishing is qualified by the necessity of conserva­ tion and management of the living resources of the high seas. The traditional understanding that the freedom of fishing on the high seas is without any restriction is not feasible under modern law of the sea as it may lead to the ‘tragedy of the commons’.195 In the Fisheries Jurisdiction Case, the Interna­ tional Court of Justice (ICJ) held that: It is one of the advances in maritime international law, resulting from the intensification of fishing, that the former laissez-faire treatment of the liv­ ing resources of the sea in the high seas has been replaced by a recognition of . . . the needs of conservation for the benefit of all.196

Ibid., Art 87(1)(e).

WT Burke, The New International Law of Fisheries (n 6), 93.

S Oda, Fisheries (n 94), 750.

LOSC (n 22), Art 87(2) (emphasis added).

See the previous discussion for some guidance as to the content of the ‘due regard’

obligation. 195 SJ Shackelford, ‘The Tragedy of the Common Heritage of Mankind’ (2008) 27 Stanford Environmental Law Journal 101. 196 Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v Ice­ land) (Judgment) [1974] ICJ Rep 3, [72] (emphasis added). 190 191 192 193 194

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Inheriting this precedent, the LOSC imposes a general obligation on all States to adopt appropriate measures with respect to their respective nation­ als for the conservation of the living resources of the high seas.197 This flag State-based conservation and management scheme requires every flag State to determine the TAC and to establish other conservation measures with respect to their nationals’ fishing on the high seas.198 The flag State also has a ‘due diligence’ enforcement obligation to ensure that fishing vessels flying its flag comply with its conservation and management measures adopted for the living resources of the high seas.199 Beyond individual flag, State-based measures, the LOSC further imposes an obligation on all States fishing in a particular area of the high seas to cooperate in the conservation and man­ agement of the living resources of the area, including by establishing sub­ regional or regional fisheries management organizations (RFMOs).200 The third factor that restricts the freedom of fishing on the high seas relates to the need to respect the special interests of coastal States in conserving certain types of MLRs in the waters adjacent to the high seas (i.e., the EEZ). These species include straddling and highly migratory fish stocks, marine mammals, anadromous stocks, and catadromous species (discussed previously). In this regard, Article 116(b) of the LOSC provides that the freedom of fishing of all States on the high seas is subject to ‘the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67’.201 This provision prioritizes the rights and duties of coastal States – with respect to the management and conservation of these fish stocks – over the freedom of other States fishing on the high seas by requiring, at least, that the latter cooperate and enter into an agreement for the proper conservation of the stocks.202 The provision also implicitly suggests that such agreements and cooperative arrangements should emphasize the special inter­ ests of coastal States in the adjacent EEZ by putting certain limitations on the freedom of fishing of such stocks by nationals of other States on the high seas.203 The LOSC also prohibits fishing for anadromous and catadromous species by all States on the high seas so that the special interest of the coastal State relating to these stocks in the adjacent EEZ remains unaffected.204 197 198 199 200 201 202 203

LOSC (n 22), Art 117.

Ibid., Art 119(1).

See ITLOS Fisheries Advisory Opinion (n 103), [119].

LOSC (n 22), Art 118.

Ibid., Art 116(b).

WT Burke, The New International Law of Fisheries (n 6), 12.

For a detailed discussion of coastal States’ special interests, see FO Vicuna, ‘The “Presential

Sea”: Defining Coastal States’ Special Interest in High Seas Fisheries and Other Activities’ (1992) 32 German Yearbook of International Law 264. 204 LOSC (n 22), Arts 66(3)(a)  & 67(2). The prohibition of fishing anadromous species on the high seas is subject to an exception in circumstances where such prohibition ‘would result in economic dislocation for a State other than the State of origin’. In such exceptional

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Finally, the freedom of fishing on the high seas can be limited by other spe­ cific treaties.205 For example, the International Convention for Regulation of Whaling (ICRW) prohibits commercial whaling on the high seas. The various RFMOs can impose restrictions on the exploitation of certain types of fish stocks.206 The UNFSA and the recently adopted treaty on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdic­ tion (the BBNJ treaty) may also provide further prohibitions of fishing in certain areas of the high seas.207 The following section highlights the purpose and the relevant provisions of the UNFSA. 4.1 The 1995 Fish Stocks Agreement The UNFSA was concluded in 1995 to supplement the provisions of the LOSC relating to straddling and highly migratory fish stocks. The objec­ tive of the agreement is ‘to ensure the long-term conservation and sustain­ able use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the [LOSC]’.208 As an implementing agreement, it provides significant clarification to the content of the broad duties that States have in cooperating for the conservation and management of straddling and highly migratory fish stocks set out in Articles 63(2), 64, and 118 of the LOSC. Accordingly, the interpretation of the rele­ vant provisions of the LOSC must take into account the terms of the UNFSA as a ‘subsequent agreement . . . regarding the interpretation of the treaty or application of its provisions’ within the meaning of Article 31(3)(a) of the Vienna Convention on the Law of Treaties (VCLT).209 The UNFSA primarily applies to the conservation and management of straddling and highly migratory fish stocks on the high seas. However, some

205 206

207

208

209

circumstances, the State of origin and such other States fishing on the high seas have a mutual obligation to cooperate and enter into consultations ‘with a view to achieving agree­ ments on terms and conditions of such fishing giving due regard to the conservation require­ ments and the needs of the State of origin in respect of these stocks’ (LOSC, Art 66(3)(a)). Ibid., Art 116(a). See AK Sydnes, ‘Regional Fisheries Organizations and International Fisheries Governance’ in SA Ebbin, AH Hole, and AK Sydnes (eds), A Sea Change: The Exclusive Economic Zone and Governance Institutions for Living Marine Resources (Springer 2005) 117–133. See the BBNJ Treaty (n 143). The UN Fish Stocks Agreement (UNFSA), the 1995 FAO Code of Conduct for Responsible Fisheries, and the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing are the other relevant instruments applicable in the conservation of high seas living resources. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA), concluded at New York on 4 August 1995, 2167 UNTS 3 (entered into force 11 December 2001), Art 2. C Warbrick, D McGoldrick, and DH Anderson, ‘The Straddling Stocks Agreement of 1995: An Initial Assessment’ (1996) 45(2) International and Comparative Law Quarterly 463, 468.

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of its provisions also apply to the conservation and management of straddling and highly migratory fish stocks within areas under national jurisdiction sub­ ject to other applicable legal regimes.210 Accordingly, the general principles enumerated under Article 5 of the UNFSA apply equally to the conservation and management of straddling and highly migratory fish stocks within areas under national jurisdiction.211 Moreover, the provisions of the UNFSA dealing with the precautionary approach to conservation (Article 6), the consistency of conservation and management measures for areas under national jurisdic­ tion and the adjacent high seas (Article 7), and the recognition of the special requirements of developing States (Articles 24–26) apply, mutatis mutan­ dis, to the conservation and management of straddling and highly migratory fish stocks under national jurisdiction. Over and above their application to the conservation and management of straddling and highly migratory fish stocks, the aforementioned general principles have also been interpreted to widely apply to the conservation and management of MLRs in general.212 In short, the UNFSA fills an important gap left by the LOSC with respect to the conservation and management of MLRs within and beyond areas under national jurisdiction. It provides detailed rules regarding proper mechanisms that facilitate the cooperation of States, including through RFMOs, by set­ ting out their different functions in detail (Arts 9 & 10). In conclusion, the freedom of fishing exercisable on the high seas is regu­ lated by the rules of the LOSC and other specialized treaties to avoid or mini­ mize possible conflicts of interest that may arise between States in their use of the high seas. Such regulation ensures the proper conservation and man­ agement of the living resources of the high seas and safeguards the special interests of the coastal State with respect to certain species located adjacent to the EEZ. These requirements introduce significant modifications to the traditional principle of the freedom of fishing on the high seas, and the high seas have, therefore, become a ‘managed common area’ rather than an area where traditional freedom of fishing is fully exercised.213 5. Conclusion The law of the sea regime in general and the 1982 LOSC in particular estab­ lishes a ‘legal order for the seas and the oceans’.214 It sets out the sovereignty,

210 UNFSA (n 209), Art 3.

211 Ibid., Art 3(2).

212 See WR Edeson, ‘A Brief Introduction to the Principal Provisions of the International Legal

Regime Governing Fisheries in the EEZ’ in SA Ebbin, AH Hole, and AK Sydnes (eds), A Sea Change: The Exclusive Economic Zone and Governance Institutions for Living Marine Resources (Springer 2005) 17, 20. 213 Rothwell and Stephens, The International Law of the Sea (n 3), 146. 214 LOSC (n 22), preamble, recital 4.

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sovereign rights, and jurisdiction of the coastal/archipelagic States as well as the rights, freedoms, and jurisdictions of other States depending on the mari­ time zone. The coastal State exercises sovereignty over the maritime zones under national territory (i.e., internal waters, the territorial sea, and archi­ pelagic waters). Consequently, the coastal State has complete and exclusive authority to regulate all activities relating to the exploration, exploitation, and conservation of the MLRs within those maritime zones. It may grant exclusive access to its own nationals to exploit such resources or permit for­ eigners to fish in those zones, in which case the latter’s fishing activities are completely subject to the laws and regulations of the coastal State. How­ ever, the sovereignty of the coastal/archipelagic State over the territorial sea and archipelagic waters is subject to certain limitations. Namely, the right of innocent passage of other States and other obligations that arise from exist­ ing agreements or other rules of international law, including TFRs. In the EEZ, the coastal State has sovereign rights over the natural resources pursu­ ant to which the coastal State exercises plenary power to dispose of the living resources of the zone without interference from any other State. Article 61 and the subsequent provisions of the LOSC further elaborate on this broad authority and the limitations associated with such authority. These limita­ tions aim, inter alia, at ensuring ‘due regard’ for the rights and freedoms of other States, to conserve and manage the MLRs, and to promote the opti­ mum utilization of the surplus living resources of the zone. On the other hand, a different principle applies in areas beyond national jurisdiction. The principle of freedom of fishing makes the high seas a com­ mon space open to all States to use based on equality. Thus, nationals of all States are free to harvest the living resources of the high seas without interference from any other State, subject to the conditions and restrictions laid down in the LOSC and other rules of international law. These condi­ tions include, inter alia, the duty to have ‘due regard’ for the freedoms of other States, the requirement of conservation and management of the liv­ ing resources of the high seas, and the duty of all high seas fishing States to respect the special interests of the coastal State with respect to certain types of fish stocks. Cooperation amongst the concerned States is considered the principal means for achieving these objectives.

Chapter 6

Interaction between the human rights of indigenous peoples and the law of the sea

1. Introduction International human rights law provides protection for the rights of indige­ nous peoples to access marine space and marine living resources (MLRs) and imposes corresponding obligations on coastal States to respect and promote such rights (see Chapter 4). That said, neither the four Geneva Conventions on the Law of the Sea1 nor the United Nations Convention on the Law of the Sea (LOSC)2 contain any express reference to the rights of indigenous peoples relating to marine space and marine resources.3 Rather, the law of the sea imposes various types of obligations on coastal States in the differ­ ent maritime zones, including, inter alia, obligations to respect the right to innocent passage and freedom of navigation, to conserve and manage MLRs, and to promote optimum utilization of the surplus resources of the exclusive economic zone (EEZ). Thus, a coastal State has concurrent obligations – obligations to recognize the human rights of indigenous peoples to marine space and marine resources and obligations arising from the law of the sea. This chapter explores whether and to what extent a coastal State’s obliga­ tions arising from the law of the sea limit the ability of the coastal State to 1 Convention on the Territorial Sea and Contiguous Zone, concluded at Geneva on 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964); Convention on the Con­ tinental Shelf, concluded at Geneva on 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964); Convention on the High Seas, concluded at Geneva on 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962); and Convention on Fishing and Conservation of the Living Resources of the High Seas, concluded at Geneva on 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966). 2 United Nations Convention on the Law of the Sea (LOSC), concluded at Montego Bay on 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). 3 The UN Fish Stocks Agreement is the exception as it provides a single passing reference to indigenous peoples in the context of recognizing the special requirements of developing States. See Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA), concluded at New York on 4 August 1995, 2167 UNTS 3 (entered into force 11 December 2001), Art 24.

DOI: 10.4324/9781003242772-9

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fulfill its obligations with respect to the rights of indigenous peoples relating to marine space and MLRs. In other words, this chapter examines the pos­ sible interactions between the law of the sea and the rights of indigenous peo­ ples relating to marine space and resources under international human rights law. The term ‘interaction’ encompasses both the parallel and non-conflicting application of the two sets of norms as well as the situation in which there is the potential for conflict (i.e., situations where a coastal State may be unable to fulfill both its obligations to indigenous peoples and its obligations under the law of the sea). Section 2 offers a general discussion of the interactions between international human rights law and the law of the sea regimes, fol­ lowed by a discussion of the general mechanisms for the interaction of the two bodies of international law in Section  3. Section  4 examines specific areas of interaction between the rights of indigenous peoples and the law of the sea. Finally, Section 5 provides some concluding remarks. 2. General considerations on the interaction between human rights law and the law of the sea The law of the sea and human rights law are two distinct branches of inter­ national law that manifest certain apparent differences. The main difference concerns the nature of the right holders and their respective objects and pur­ poses. While the human rights law regime provides for the rights of individu­ als and groups of individuals (as its subjects) and the corresponding State duties,4 the law of the sea regime regulates the relationship between States with respect to maritime issues. Accordingly, the core objective of human rights law is to protect and promote the wellbeing and dignity of human beings. In this respect, human rights law is often viewed as a burden insofar as it may limit State sovereignty in their obligations to protect the rights of individuals and groups of individuals.5 On the other hand, the primary objective of the law of the sea regime is to balance the interests of coastal States and those of other States in their maritime relations. The law of the sea aims to achieve this objective by, inter alia, promoting the peaceful use of the oceans, the equitable and efficient utilization of ocean resources, the conservation and management of living resources, and the study, protection, and preservation of the marine environment.6 Despite these differences, human rights law and the law of the sea are not watertight compartments. The International Law Commission (ILC) con­ cludes that ‘[i]nternational law is a legal system. Its rules and principles (i.e., 4 Åhrén observes that human rights law instruments do not serve the interests of contracting States but of ‘subjects other than the parties to the instrument’ (see M Åhrèn, Indigenous Peoples’ Status in the International Legal System (OUP 2016) 74). 5 Ibid., 73–74. 6 LOSC (n 2), preamble, recital 4.

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its norms) act in relation to and should be interpreted against the background of other rules and principles. As a legal system, international law is not a ran­ dom collection of such norms. There are meaningful relationships between them’.7 This conclusion suggests that there is not a fully ‘self-contained’ regime8 and that the so-called ‘self-contained’ regimes have some connec­ tion both with each other and with general international law.9 Thus, it may be inappropriate to view ‘any part of international law in isolation from the whole’.10 This general view applies equally to the specific context of the relationship between the law of the sea and the human rights law. The LOSC’s recognition that ‘the problems of ocean space are closely interrelated and need to be con­ sidered as a whole’,11 opens the door for the law of the sea regime to interact with other regimes, including human rights law. Boyle rightly observes that the law of the sea functions within a larger international legal system and, therefore, ‘integration within that larger system, not fragmentation from it, must necessarily be the starting point when considering the further evolution of the law of the sea’.12 As part of the larger body of an international ‘legal system’, developments within international human rights law may impact developments within the law of the sea regime and vice versa. This ‘inter­ regime dynamics’13 helps to integrate the two seemingly ‘self-contained’ regimes and to sketch their future developments properly. In fact, the concerns and values of human rights law are part of the law of the sea regime. While the LOSC does not use the term ‘human rights’, the 7 ILC, Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (2006), conclusion No 1 (emphasis added). 8 For a detailed discussion on ‘self-contained’ regimes, see B Simma and D Pulkowski, ‘Of the Planets and the Universe: Self-Contained Regimes in International Law’ (2006) 17(3) Euro­ pean Journal of International Law 483; ILC, Report of the Study Group of the International Law Commission on Fragmentation of International Law: Difficulties Arising from Diver­ sification and Expansion of International Law, 58th session, Finalized by M Koskenniemi, UN Doc A/CN.4/L.682 (2006), [123–190]. 9 T Treves, ‘Human Rights and the Law of the Sea’ (2010) 28 Berkeley Journal of Interna­ tional Law 1, 1; P Sands, ‘Treaty, Custom and the Cross-Fertilization of International Law’ (1998) 1 Yale Human Rights and Development Law Journal 85, 89. 10 A Boyle, ‘Relationship between International Environmental Law and Other Branches of International Law’ in D Bodansky, J Brunnée, and E Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 128. 11 LOSC (n 2), preamble, recital 3. 12 A Boyle, ‘Further Development of the 1982 Convention on the Law of the Sea: Mechanisms for Change’ in D Freestone, R Barnes, and DM Ong (eds), The Law of the Sea: Progress and Prospects (OUP 2006) 40, 43. 13 H Quane, ‘A Further Dimension to the Interdependence and Indivisibility of Human Rights?: Recent Developments Concerning the Rights of Indigenous Peoples’ (2012) 25 Harvard Human Rights Journal 49, 66. Quane uses the term ‘inter-regime dynamics’ to refer to the impact that developments in one area of law have on another area of law, and vice versa.

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text of the Convention recognizes human rights and humanitarian concerns in several provisions. For instance, the LOSC imposes a universal duty to rescue and render assistance to any persons (regardless of their legal status) in distress in all maritime zones.14 In particular, Article 18(2) of the LOSC allows ships exercising innocent passage to stop in the territorial sea (which is normally prohibited)15 to render assistance to persons in danger or dis­ tress. It, therefore, gives special emphasis to this humanitarian requirement.16 Similarly, the LOSC not only requires flag States to ‘take effective measures to prevent and punish the transport of slaves in ships authorized to fly their flags’ but also declares that ‘any slave taking refuge on board any ship, what­ ever its flag, shall ipso facto be free’.17 This law of the sea obligation is con­ sistent with the rules of human rights law that prohibit slavery and the slave trade.18 The LOSC also obliges coastal States to promptly release an arrested 14 LOSC (n 2), Arts 18(2) & 98, and within the EEZ pursuant to Art 58(2). This obligation is also recognized under the International Maritime Organization (IMO) Safety of Life at Sea, and Search and Rescue Conventions. See International Convention for the Safety of Life at Sea (SOLAS), concluded at London on 1 November 1974 (as amended in 2000), 1184 UNTS 2 (entered into force 25 May 1980); and International Convention on Maritime Search and Rescue (SAR), concluded at Hamburg on 27 April 1979, 1405 UNTS 23489 (entered into force 22 June 1985). For a detailed discussion, see M Pallis, ‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes’ (2002) 14 Inter­ national Journal of Refugee Law 329; and KS O’Brien, ‘Refugees on the High Seas: Interna­ tional Refugee Law Solutions to the Law of the Sea Problem’ (2011) 3(2) Goettingen Journal of International Law 715. 15 In principle, innocent passage is a right to pass or traverse through the territorial sea, which passage shall be continuous and expeditious. However, there are exceptions where stopping and anchoring in the territorial sea is permitted, including when such stopping is ‘incidental to ordinary navigation or [is] rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress’ (LOSC (n 2), Art 18(2)). 16 See S Dominelli, ‘Human Rights at Sea: Does the Law of the Sea Clash with Well-Established Human Rights Principles?’ in G Andreone (ed.), Jurisdiction and Control at Sea: Some Envi­ ronmental and Security Issues (Giannini Editore 2014) 127, 134–135. 17 LOSC (n 2), Art 99. The obligation of flag States to prohibit and punish slavery and the slave trade also applies within the EEZ by virtue of Article 58(2). For a detailed discussion of Article 99 of the LOSC, see D Guifoyle, ‘Article 99 LOSC, Part VII: High Seas’ in A Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Verlag C H Beck oHG 2017) 731. 18 See, for example, the Universal Declaration of Human Rights (UDHR), UNGA Res 217 (III) (10 December 1948), Art 2; International Covenant on Civil and Political Rights (ICCPR), concluded at New York on 16 December  1966, 999 UNTS 171 (entered into force 23 March 1976), Art 8; European Convention on Human Rights: Convention for the Protec­ tion of Human Rights and Fundamental Freedoms, adopted at Rome on 4 November 1950, 213 UNTS 2 (entered into force 3 September  1953), Art 4; African (Banjul) Charter on Human and Peoples’ Rights (ACHPR), concluded at Nairobi on 27 June 1981, 1520 UNTS 217 (entered into force 21 October 1986), Art 5; American Convention on Human Rights: ‘Pact of San Jose, Costa Rica’, signed at San Jose on 22 November 1969, 1144 UNTS 143 (entered into force 18 July 1978), Art 6; and the Convention to Suppress the Slave Trade

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vessel and its crew on the posting of a reasonable bond or other security and prohibits coastal States from implementing imprisonment, corporal punish­ ment, and other non-monetary penalties for violations of their fisheries regu­ lations.19 Further, Article 110 of the LOSC allows a warship of any State to visit (board and inspect documentation) a foreign vessel on the high seas if it has reasonable grounds for suspecting that the vessel is engaged in piracy, slave trade, unauthorized broadcasting, or is without nationality. If suspi­ cion remains after conducting a preliminary inspection, the investigating authorities are entitled to conduct further examinations, which ‘must be car­ ried out with all possible consideration’ of the suspected persons onboard.20 These considerations include respect for the human rights of such persons onboard.21 In short, all of the above law of the sea obligations are connected to human rights principles, values, or considerations – i.e., to protect the wellbeing and human rights of individuals in all ocean space – requiring that States observe relevant human rights standards.22 These references, however, do not exhaust the influence that human rights law has on the law of the sea. Both the literature and case law recognize that other situations, not explicitly or implicitly foreseen by the LOSC, may be envisaged through interpretation. For example, Treves argues more gener­ ally that: The law of the sea and the law of human rights are not separate planets rotating in different orbits. Instead, they meet in many situations. Rules of the Law of the Sea are sometimes inspired by human rights considerations and may or must be interpreted in light of such considerations. The appli­ cation of rules on human rights may require the consideration of rules of the Law of the Sea.23

19

20 21

22

23

and Slavery, concluded at Geneva on 25 September 1926, 60 LNTS 253 (entered into force 9 March 1927). LOSC (n 2), Art 73(2) & (3). The relevant human rights issues in this regard include, inter alia, the legality of the process of detention, the presumption of innocence, prohibition of torture, cruel and inhuman treatment, and the right to be promptly brought before a judicial authority. For a detailed discussion, see I  Papanicolopulu, ‘The Law of the Sea Convention: No Place for Persons?’ (2012) 27 International Journal of Marine and Coastal Law 867. LOSC, ibid., Art 110(2) (emphasis added). With respect to piracy, Art 105 of the LOSC allows the boarding State to arrest the persons onboard a pirate ship. See generally P Bodini, ‘Fighting Maritime Piracy Under the European Convention on Human Rights’ (2011) 22(3) European Journal of International Law 829; and D Guilfoyle, ‘Counter-Pracy Law Enforcement and Human Rights’ (2010) 59(1) International and Com­ parative Law Quarterly 141. Commentators agree with this viewpoint. See T Treves, Human Rights and the Law of the Sea (n 9), 3–4; and BH Oxman, ‘Human Rights and the United Nations Convention on the Law of the Sea’ (1997) 36 Columbia Journal of Transnational Law 399, 415, 424 & 426. T Treves, ibid., 12 (emphasis added).

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Thus, according to Treves, human rights law and the law of the sea regimes have a mutual relationship – one serving as an inspiration and a tool to inter­ pret the other.24 Several decisions of the International Court of Justice (ICJ), the Interna­ tional Tribunal on the Law of the Sea (ITLOS), and Annex VII tribunals also recognize the influence of human rights law on the law of the sea. For exam­ ple, in its very first case, the ICJ – addressing the extent of Albania’s obliga­ tions to respect the right of innocent passage within the territorial sea – held in Corfu Channel that State obligations ‘are based . . . on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war’.25 In a similar vein, ITLOS – in assessing the legality of the use of force by Guinea for arresting a vessel (the Saiga) – ruled in M\V Saiga No 2 that ‘considerations of humanity must apply in the law of the sea, as they do in other areas of international law’.26 ITLOS reiterated this ruling verbatim in the Enrica Lexie Incident order in 2015.27 In the M/V “Louisa” Case – addressing the legality of the arrest and treatment of crew and other persons onboard a vessel (Louisa) docked in a Spanish port28 – ITLOS similarly held that ‘States are required to fulfill their obligations under international law, in particular human rights law, and that considerations of due process of law must be applied in all circumstances’.29 Moreover, in the arbitration between Guyana and Suriname, the Annex VII arbitral tribunal, in considering Suriname’s use of armed force against per­ sons present within a maritime area under Guyana’s jurisdiction, reaffirmed ITLOS’s conclusion in Saiga that it is necessary to respect the basic principle 24 Although the application of human rights law may require consideration of the rules of the law of the sea, as Treves claims, the primary approach followed in this book is the other way round (i.e., the use of human rights law as a tool to interpret the law of the sea). 25 See Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Peoples’ Republic of Albania) (Judgement) [1949] ICJ Rep 4, [22] (emphasis added). 26 The M\V “Saiga” No 2 Case (Saint Vincent and the Grenadines v Guinea) (Judgement) [1999] ITLOS Rep 10, [155] (emphasis added). 27 See The “Enrica Lexie” Incident (Italy v India) (Provisional Measures Order) [2015] ITLOS Rep 182, [133]. 28 Spanish authorities arrested the vessel and the persons onboard in the context of criminal proceedings related to alleged violations of Spanish laws on ‘the protection of the underwa­ ter cultural heritage and the possession and handling of weapons of war in Spanish territory’. See The M/V “Louisa” Case (Saint Vincent and the Grenadines v Kingdom of Spain) (Judge­ ment) [2013] ITLOS Rep 4, [104]. 29 The M/V “Louisa” Case, ibid., [155] (emphasis added). For a similar conclusion, see also The “Juno Trader” Case (Saint Vincent and the Grenadines v Guinea-Bissau) (Prompt Release, Judgment) [2004] ITLOS Rep 17, [77]. In particular, Judge Treves, in his separate opinion, concludes that ‘unnecessary use of force and violations of human rights and due process of law are elements that must also be taken into consideration in fixing a bond or guarantee that can be considered as reasonable’ (“Juno Trader”, 73).

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of ‘considerations of humanity’ in law enforcement.30 In the merits, the Tri­ bunal found Suriname in violation of the LOSC, the UN Charter, and gen­ eral international law by taking action that amounted to a threat of force.31 These rulings suggest that humanitarian considerations and observance of the human rights of individuals are core guiding principles of general inter­ national law that States should follow while taking any law enforcement measures based on rules associated with the law of the sea. In the Arctic Sunrise Case, the Annex VII Arbitral Tribunal also recog­ nized the relationship between the law of the sea and human rights law in the context of the freedom of expression and the right to peaceful protest at sea exercised by Greenpeace International against Russian drilling activities in Russia’s EEZ in the Barents Sea. The Tribunal concluded that the right to peaceful protest at sea is part of the freedom of navigation recognized under Articles 58(1) and 87 of the LOSC. The Tribunal held that: Protest at sea is an internationally lawful use of the sea related to the free­ dom of navigation. The right to protest at sea is necessarily exercised in conjunction with the freedom of navigation. The right to protest derives from the freedom of expression and the freedom of assembly, both of which are recognized in several international human rights instruments . . . including the [International Covenant on Civil and Political Rights].32 This conclusion unequivocally confirms that the term ‘freedom of naviga­ tion’ has a broad connotation in the sense that it refers not only to the sail­ ing of ships but also includes ‘other internationally lawful uses of the sea related to this freedom’,33 including, amongst others, the right to protest at sea.34 Thus, the Tribunal clearly links the human right to peaceful protest and freedom of expression at sea with the law of the sea principle of freedom 30 Arbitration on the Delimitation of the Maritime Boundary between Guyana and Suriname, Arbitral Tribunal Constituted Pursuant to Article 287, and in accordance with Annex VII, of the United Nations Convention on the Law of the Sea, PCA, Award on the Merits (17 September 2007), [405]. 31 Ibid., [488]. 32 Arctic Sunrise Arbitration (The Kingdom of Netherlands v The Russian Federation), Arbitral Tribunal Constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea, PCA, Award on the Merits (14 August 2015), [227] (emphasis added). 33 LOSC (n 2), Art 58(1). 34 Greenpeace International relied on the principle of freedom of navigation to justify its 2017 protest against the Norwegian oil drilling activities in Korpfjell, Barents Sea. See Greenpeace International, ‘Peaceful Protest against Arctic Drilling Unlawfully Ended by Norwegian Authorities’ (17 August  2017), available at: www.greenpeace.org/international/en/press/ releases/2017/Peaceful-protest-against-Arctic-drilling-unlawfully-ended-by-Norwegian­ authorities/ (accessed September 2023).

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of navigation – considering the latter as a means for exercising the former.35 More specifically, the Arbitral Tribunal also concluded that it may have regard to general international law in relation to human rights in order to determine whether law enforcement actions such as the board­ ing, seizure, and detention of the Arctic Sunrise and the arrest and deten­ tion of those on board was reasonable and proportionate.36 In his analysis of the Arctic Sunrise Arbitration, Elferink observes that human rights law may serve as a limitation to the actions of coastal States in the ocean space. He notes that [h]uman rights law is essential for assessing the kind of measures a coastal State may take in enforcing its legislation based on the law of the sea in its exclusive economic zone. Providing sufficient room for the freedom of expression may limit the scope of action that might otherwise exist.37 Elferink makes a crucial methodological point, which can be generalized beyond the EEZ and beyond cases dealing with freedom of expression.38 Put more generally, the point is simply that while the LOSC may establish the powers of both coastal States and other States, and while it may in some cases establish some limits on the exercise of those powers, we should not expect to read the LOSC as a complete statement on the limits of those powers.39 Other norms, including human rights norms and environmental norms, may impose further limitations on a State exercising powers conferred on it and recognized by the LOSC.40

35 The IMO and the International Whaling Commission (IWC) have also recognized the right to protest at sea as a lawful act, associated with the freedom of navigation, to the extent that the right is exercised without dangerous confrontation between vessels. Thus, these bodies require the right to peaceful protest to be conducted following navigational safety rules (such as the International Regulations for Preventing Collusion at Sea (COLREGs) and SOLAS), and without causing harm to human life, property, or the marine environment. See IMO, ‘Assuring Safety during Demonstrations, Protests or Confrontations on the High Sea’, MSC/Res 303(87), adopted on 17 May 2010; IWC, ‘Resolution on Safety at Sea’, IWC/63/17, Res 2011–2. 36 Arctic Sunrise Arbitration (n 32), [197]. 37 AGO Elferink, ‘The Arctic Sunrise Incident: A Multi-Faceted Law of the Sea Case with a Human Rights Dimension’ (2014) 29 The International Journal of Marine and Coastal Law 244, 244 & 273 (emphasis added). See also B Wilson, ‘Human Rights and Maritime Law Enforcement’ (2016) 52(2) Stanford Journal of International Law 243. 38 EL Enyew and N Bankes, ‘Interaction Between the Law of the Sea and the Rights of Indig­ enous Peoples’ in N Matz-Luck, Ø Jensen, and E Johansen (eds), The Law of the Sea: Nor­ mative Context and Interactions with Other Legal Regimes (Routledge 2023) 151,155. 39 Ibid. 40 See generally A Boyle, Relationship Between International Environmental Law and Other Branches of International Law (n 10), 141–143.

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In conclusion, there is no concrete boundary between human rights law and the law of the sea regimes. The fact that ocean space can be used as a venue for exercising certain human rights, that international human rights law applies to those maritime areas that fall within the ambit of the law of the sea, and the fact that human rights concerns are also part of the law of the sea – amongst other reasons – make the interaction between the two regimes inevitable. 3. Mechanisms for interaction between human rights law and the law of the sea There are certain general mechanisms that may allow the interaction between human rights law and the law of the sea. These connecting mechanisms include, inter alia, cross-referencing clauses, relationships, and applicable law provisions, as well as rules of treaty interpretation. The following sub­ sections discuss each of these tools. 3.1 Express cross-referencing, relationship, and applicable law clauses In the first instance, a treaty’s relationship with other treaties or norms of international law is determined by its own express terms, particularly through its cross-referencing clauses or relationship and applicable law provisions.41 These mechanisms highlight the applicable rules of inter­ national law beyond the treaty text through an express incorporation of a clause into the text of the treaty itself.42 The inclusion of such clauses ‘encourage a more coherent approach to legal reasoning and prevent disintegration of legal rules into their various (and ultimately artificial) sub-disciplines’.43 The various sources of the law of the sea, particularly the LOSC, refer to other rules of international law. The LOSC, in its preamble, provides that ‘matters not regulated by this Convention continue to be governed by the rules and principles of general international law’.44 The preamble of the LOSC also embraces human rights principles referring to the contribution that the Convention will make to ‘the principles of justice and equal rights and will promote the economic and social advancement of all peoples of the world in accordance with the Purposes and Principles of the United Nations

41 A Boyle, ibid., 133.

42 D French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’ (2006)

55(2) International and Comparative Law Quarterly 281, 292. 43 Ibid., 285. 44 LOSC (n 2), preamble, recital 8 (emphasis added). The UNFSA (n 3) also provides a similar provision (preamble, recital 10).

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as set forth in the Charter’.45 The Convention’s explicit reference to the UN Charter is particularly significant as one of the purposes and principles of the Charter is to promote human rights and fundamental freedoms, including the right to self-determination of peoples.46 Indeed, Article 305 of the LOSC47 and Resolution III of Annex I of the Final Act of the Third United Nations Conference on the Law of the Sea (UNCLOS III) also cross-references the UN General Assembly resolutions dealing with the right to self-determination and decolonization.48 These preambular references are, from the outset, clear affirmations that the LOSC is open to other relevant rules of international law, including human rights law, for matters that it does not regulate or inad­ equately regulates. In a number of operative provisions, the LOSC also expressly recognizes that in some cases, State powers and rights might only be exercised in accord­ ance with other general norms of international law or generally accepted international rules and standards (GAIRS) derived from other treaties.49 The provisions of the LOSC that referentially incorporate general norms of international law include, inter alia, Articles 2(3), 21(1), 34(2), 56(2), 78(2), 87(2), and 194(4).50 The Chagos Arbitral Tribunal considered all of these provisions as functionally equivalent in the sense that each requires States to ‘exercise their rights under the Convention subject to, or with regard to, the rights and duties of other States or rules of international law beyond the Con­ vention itself’.51 While these provisions do not adopt the same phraseology, 45 Ibid., preamble, recital 7 (emphasis added). 46 Charter of the United Nations, signed at San Francisco on 26 June 1945, 892 UNTS 119 (entered into force 24 October 1945), Arts 1(2) & (3). See also Chapters 3 and 4 of this book for a detailed discussion. 47 Article 305(1)(e) of the LOSC stipulates that the Convention is open for signature by: ‘All territories which enjoy full internal self-government, recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly reso­ lution 1514(XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters’ (emphasis added). 48 Resolution III of Annex I of the Final Act of UNCLOS III states that: ‘In the case of a terri­ tory whose people have not attained full independence or other self-governing status recog­ nized by the United Nations, or a territory under colonial domination, provisions concerning rights and interests under the [LOSC] shall be implemented for the benefit of the people of the territory with a view to promoting their well-being and development’. See Final Act of the Third United Nations Conference on the Law of the Sea (UNCLOS III, 1982), Resolution III of Annex I, [1(a)] (emphasis added). 49 For references to ‘generally accepted international rules and standards’, see the LOSC (n 2) Arts 21(2) & (4), 39(2), 41(3), 53(8), 60(3)(5) & (6), & 94(5). See also generally BH Oxman, ‘The Duty to Respect Generally Accepted International Standards’ (1991) 24 New York University Journal of International Law and Politics 109. 50 Other provisions of the LOSC that refer to external sources of international law include Articles 19(1), 23, 31, 39(1)(b), 58(2) & (3), 74(1), 83(1), 87(1), & 235. 51 Chagos Arbitration (The Republic of Mauritius v The United Kingdom of Great Britain and Northern Ireland), Arbitral Tribunal Constituted under Annex VII of the 1982 United

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the Tribunal was convinced that this ‘renvoi to material beyond the Conven­ tion’ must be interpreted harmoniously.52 The Chagos Tribunal particularly explored the scope of the reference to ‘other rules of international law’ under Article 2(3). The majority concluded that this renvoi did not encompass bilateral undertakings or local customs but was instead confined to ‘general rules of international law’.53 The minor­ ity, on the other hand, took a more robust view of the scope of the reference to other norms of international law under Article 2(3). They concluded that this reference encompasses not only general international law but also ‘obli­ gations arising from commitments by the coastal State bilaterally or even unilaterally, as well as commitments based upon customary international law or the binding decisions of an international organization’.54 The South China Sea Tribunal, while reaffirming the interpretation of the renvoi by the majority in the Chagos Arbitration, concluded that Article 2(3) of the LOSC protects traditional fishing rights (TFRs) since general international law rec­ ognizes the law of vested rights.55 Under Article 311, the LOSC further provides for a general framework (a relationship clause) dealing with its relationship with other conventions and international agreements. Article 311(2) of the Convention is of particu­ lar importance for the current context, which states: This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.56 The South China Sea Tribunal concluded that ‘this provision applies equally to the interaction of the Convention with other norms of inter­ national law, such as historic rights, that do not take the form of an Nations Convention on the Law of the Sea, PCA, Award on the Merits (18 March 2015), [503 & 540]. The Chagos Tribunal considered these provisions as limits on the authority of the United Kingdom to unilaterally establish a marine protected area (MPA) around the Chagos Archipelago, [514]. 52 Ibid., [503]. See also EL Enyew and N Bankes, Interaction (n 38), 157. 53 Chagos Arbitration, ibid., [516]. 54 Ibid., Dissenting and Concurring Opinion of Judges James Kateka and Rüdiger Wolfrum, [94]. 55 South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China), Arbitral Tribunal Constituted under Annex VII of the 1982 United Nations Con­ vention on the Law of the Sea, PCA, Award on the Merits (12 July 2016), [808]. See also K Parlett, ‘Beyond the Four Corners of the Convention: Expanding the Scope of Jurisdiction of Law of the Sea Tribunals’ (2017) 48 Ocean Development and International Law 284, 292–294. 56 LOSC (n 2), Art 311(2) (emphasis added). The UNFSA provides an identical provision under its Art 44(1).

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agreement’.57 This means that the LOSC does not affect the rights and obliga­ tions of States that arise from other agreements (both pre- and post-LOSC agreements) or other non-conventional norms of international law as long as the two conditions are satisfied. Namely, those agreements or norms of international law are, first, not incompatible58 with the Convention59 and second, they do not impede or cause any obstruction to the exercise of rights and discharge of duties by other State parties. These ‘other agreements’ or ‘other norms of international law’ may include the various human rights law instruments or the customary norms of international human rights law whose objects and purposes are not incompatible with the LOSC. Accordingly, the Convention does not preclude State parties from discharging their human rights obligations that emanate from different human rights law sources inso­ far as this does not affect the rights of other State parties provided under the Convention. Apart from cross-references and the general relationship clause, the appli­ cable law provision of the LOSC also embraces other sources of international law beyond the Convention. Article 293(1) of the LOSC provides that a ‘court or tribunal having jurisdiction . . . shall apply this Convention and other rules of international law not incompatible with this Convention’ in deciding cases submitted based on the law of the sea.60 The reference to ‘other rules of inter­ national law’ includes general international law61 and conventional human rights law62 insofar as it is not incompatible with the object and purpose of the LOSC. Indeed, in the Arctic Sunrise Arbitration, the Arbitral Tribunal expressly acknowledged that Article 19 of the ICCPR (dealing with the free­ dom of expression) was part of the applicable law. The Tribunal concluded that it ‘may, pursuant to article 293, have regard to the extent necessary to

57 South China Sea Arbitration (n 55), [235]. 58 There is no clear standard for measuring the compatibility or otherwise of those treaties with the LOSC, but the object and purpose of the treaties concerned may be taken as a starting point from which to measure their compatibility with the LOSC. 59 The UN Charter is an exception in this regard because obligations under the Charter, includ­ ing obligations arising from decisions of the Security Council, prevail over conflicting obliga­ tions in other treaties, which includes the LOSC (UN Charter (n 46), Art 103). 60 LOSC (n 2), Art 293(1) (emphasis added). 61 See The M\V Saiga No 2 (n 26), [155]; and Guyana/Suriname Arbitration (n 30), [405–406]. These tribunals used other rules of international law, such as customary international law and UN Charter provisions on the use of force, respectively, as a basis for determining breaches of a State’s obligations in contrast to the more restrictive approach followed by the tribunal in Arctic Sunrise case. For a detailed discussion, see M Wood, ‘The International Tribunal for the Law of the Sea and General International Law’ (2007) 22(3) International Journal of Marine and Coastal Law 351. 62 For example, the dissenting judges in the Chagos Arbitration opined that Art 293(1) allows the Tribunal to ‘consider the international law rules concerning decolonization’ or ‘the rules on self-determination’. See Chagos Arbitration (n 52), Dissenting and Concurring Opinion of Judges James Kateka and Rüdiger Wolfrum, [73 & 74].

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rules of customary international law, including international human rights standards, not incompatible with the Convention, in order to assist in the interpretation and application of the Convention’s provisions that author­ ize the arrest or detention of a vessel and persons’.63 However, the Tribunal acknowledged that Article 293(1) of the LOSC does not serve to extend the jurisdiction of courts and tribunals beyond the LOSC but, rather, helps them ‘to give full effect to the provisions of the Convention’.64 Accordingly, the Tri­ bunal held that it had no jurisdiction to directly consider a claim that Russia was in breach of its obligations under the ICCPR65 but that it could use the ICCPR to interpret the scope of the freedom of navigation. Such an analysis allowed the Tribunal to conclude that the freedom of navigation includes using the ocean for peaceful protest purposes and allowed the Tribunal to assess the reasonableness and proportionality of the measures taken by Rus­ sia in response to the activities of the protesters.66 Similarly, in the arbitration between Malta and São Tomé and Príncipe (Duzgit Integrity Arbitration),67 Malta invited the Tribunal to apply inter­ national human rights norms, claiming that ‘fundamental human rights . . . fall within the scope of “other rules of international law” ’ under Article 293(1) of the LOSC.68 In this respect, the Tribunal referred to and upheld the rulings of the Arctic Sunrise Arbitral Tribunal on this matter.69 While acknowledging that human rights law neither extends the Tribunal’s juris­ diction nor forms a basis for determining breaches of a State’s human rights obligations, the Tribunal concluded that it is entitled to rely on relevant rules of international human rights law in order to properly interpret and apply ‘some broadly worded or general provisions’ of the LOSC.70 Thus, decisions

Arctic Sunrise Arbitration (n 32), [198] (emphasis added).

Ibid., [188].

Ibid., [197].

Ibid., [197–198].

The Duzgit Integrity Arbitration (The Republic of Malta v The Democratic Republic of São

Tomé and Príncipe), Arbitral Tribunal Constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea, PCA, Award on the Merits (5 September 2016). This case concerned Malta’s claim that São Tomé and Príncipe breached the LOSC by taking illegitimate measures against a Maltese flagged vessel (Duzgit Integrity) within the latter’s archipelagic waters. Particularly, Malta alleged that the arrest of the Duzgit Integrity, the detention of the master, the fine imposed, and the confiscation of the vessel and its cargo constituted a violation of Articles 49(3) & 300 of the LOSC. 68 Ibid., [203]. 69 Ibid., [207]. 70 Ibid., [208  & 210]. Commentators also support this approach. For example, Oxman observes that ‘the meaning of the text of the Convention may itself be clarified by refer­ ence to rules found in other instruments or customary international law, such as those that help explain the provenance, wording, or function of the text’. See B Oxman, ‘Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals’ in DR Rothwell et al. (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 394, 414. 63 64 65 66 67

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of international tribunals confirm that the applicable law provision of the LOSC allows tribunals (and, by inference, anyone who engages in the inter­ pretation of the text of the Convention) to draw on the relevant norms and standards of human rights law in interpreting and applying certain provi­ sions of the LOSC to the extent the context so requires.71 In sum, the various cross-referencing, relationship, and applicable law clauses of the LOSC provide clear entry-points for, or establish connection with, other sources of international law – including human rights law. 3.2 Systemic integration: Article 31(3)(c) of the VCLT Rules of treaty interpretation are integral components of the international legal system and shape the system as a whole by giving meaning to individ­ ual rules.72 Rules of treaty interpretation that link a treaty with other rules of international law are especially essential if the treaty concerned contains no express provision(s) sufficiently governing its relationship with external sources.73 Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) is of particular importance in this regard. It states that, in interpret­ ing a treaty, ‘[t]here shall be taken into account, together with the context, any relevant rules of international law applicable in the relations between the parties’.74 While the provision requires that the ‘rules of international law’ must be ‘relevant and applicable’ to be used as a tool for interpret­ ing the terms of another treaty, it neither clarifies what those rules are nor does it provide further guidance as to how to measure their relevance and applicability.75 This lack of clarity has led to different interpretations of the scope of the reference. For example, in the OSPAR Arbitration,76 the Tribunal (by majority 71 For a detailed discussion of Article 293(1) LOSC, see K Parlett, Beyond the Four Corners of the Convention (n 55), 285–290. 72 C McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Con­ vention’ (2005) 54(2) International and Comparative Law Quarterly 279, 282. 73 Ibid., 280. See also A  Boyle, Relationship between International Environmental Law and Other Branches of International Law (n 10) arguing that ‘one of the most important approaches to integration of different bodies of law is based on techniques of interpretation, taking account of one treaty or legal norm in order to assist in the interpretation or applica­ tion of another treaty or norm’ (at 128). 74 Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May  1969, 1155 UNTS 331 (entered into force 27 January 1980), Art 31(3)(c) (emphasis added). 75 When applied in the context of indigenous peoples, the term ‘relevant and applicable rules of international law’ may be understood to mean any rules of international law applicable to indigenous peoples to which States are bound to honor. 76 Dispute Concerning Access to Information under Article 9 of the OSPAR Convention (Ire­ land v United Kingdom of Great Britain and Northern Ireland) (OSPAR Arbitration), PCA, Award on the Merits (2 July 2003). This arbitration concerned the claim by Ireland that the United Kingdom (UK) refused to provide information regarding the operation of a plant

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vote) adopted a narrow construction. That is, while it accepted that it could draw upon customary international law and general principles in interpreting the parties’ obligations under the OSPAR Convention,77 the Tribunal declined to apply other conventional international law.78 The Tribunal reasoned that the reference to ‘other rules of international law’ does not include other con­ ventions unless the treaty under interpretation makes a direct renvoi to such other conventions.79 It further held that since the referenced convention (i.e., Aarhus Convention) was not yet in force for either disputing party, it was not considered a relevant rule of law applicable between the parties within the meaning of Article 31(3)(c) of VCLT.80 The dissenting opinion of Grif­ fith, however, followed a broader approach, holding that the content of the renvoi under Article 31(3)(c) corresponds to ‘the authoritative and orthodox catalogue of sources of international law’ in Article 38 of the Statute of the ICJ.81 Thus, according to Griffith, any sources of international law stated under the ICJ Statute – such as other treaties, customary international law, and general principles of law – can be used to assist the interpretation of a treaty text.82 This may also include treaties signed, but not yet in force, by the disputing parties as they may have some normative value and manifest evidence of a common understanding of the parties regarding the meaning of the term used in the treaty under interpretation.83 Subsequent decisions of international courts and tribunals, including the ICJ in the Oil Platforms Case, have also adopted a broader understanding of the scope of the refer­ ence.84 Commentators similarly regard Article 31(3)(c) of VCLT as a ‘master key’ that permits access to all relevant sources of international law under the ICJ Statute.85

established to produce mixed oxide fuel (MOX plant) in violation of its obligations under the OSPAR Convention. Ireland requested the Tribunal to interpret the right of access to information stipulated under Article 9 of the OSPAR Convention in light of other rules of international law, particularly the Aarhus Convention. 77 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), adopted at Paris on 22 September 1992, 2354 UNTS 67 (entered into force 25 March 1998). 78 Ibid., [84–86]. 79 Ibid., [85 & 92]. 80 Ibid., [101 & 103–104]. 81 Ibid., Dissenting Opinion of Gavan Griffith QC, p. 67, [2]. 82 Ibid., [2, 4, 7, 19]. 83 Ibid., [19]. The dissent specifically stressed that the Aarhus Convention was signed by both Ireland and the UK, and that the latter expressed its clear intention to ratify it to show its relevance to the interpretation of the OSPAR Convention. 84 See Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Judgment) [2003] ICJ Rep 161. 85 See C McLachlan, The Principle of Systemic Integration (n 72), 281 & 290; D French, Treaty Interpretation and the Incorporation of Extraneous Legal Rules (n 42), 300; P Sands, Treaty, Custom and the Cross-Fertilization of International Law (n 9), 87 & 95; and ILC, Report of

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The ‘relevant rules of international law’ are not limited to those existing at the time the treaty was concluded but also include those relevant rules existing at the time of interpretation. This is consistent with the principle of inter-temporality, which requires that ‘an international instrument has to be interpreted and applied within the framework of the entire legal system pre­ vailing at the time of the interpretation’.86 In fact, the initial Draft Article 70 of the ILC, which became the final version of Article 31(3)(c) of the VCLT, incorporated only the principle of contemporaneity without any space for an inter-temporal element. The initial version of Draft Article 70(1)(b) provided that ‘a treaty shall be interpreted . . . in the light of the rules of international law in force at the time of its conclusion’.87 The italicized phrase was later removed, suggesting that the final provision of the VCLT embraces not only rules of international law prevailing at the time of a treaty’s conclusion but also subsequent legal developments.88 Thus, evolutive interpretation allows a re-interpretation of particular provisions or certain generic terms or phrases of a treaty in a manner that reflects current factual or legal developments – including scientific or techni­ cal developments or the emergence of new laws.89 In the Namibia Advisory Opinion, the ICJ noted that the generic ‘concepts embodied in Article 22 of the Covenant of the League of Nations – “the strenuous conditions of the modern world” and “the well-being and development of the peoples con­ cerned” – were not static, but were by definition evolutionary’.90 Similarly, in the Aegean Sea Continental Shelf case, the ICJ ruled that the expressions ‘the territorial status of Greece’ and ‘jurisdiction’ used in Greece’s reservation the Study Group of International Law Commission on Fragmentation of International Law (n 8), especially Part F, Systemic Integration and Article 31(3)(c) of VCLT. 86 Legal consequences for States of the Continued Presence of South Africa in Namibia (South­ west Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, [53] (emphasis added). 87 ILC, Summary Record of the 769th meeting, Waldock, UN Doc A/CN.4/SR.769 (17 July 1964), [3] (emphasis added). 88 See generally P Merkouris, ‘(Inter)Temporal Considerations in the Interpretative Process of the VCLT: Do Treaties Endure, Perdure or Exdure?’ (2014) 45 Netherlands Yearbook of International Law 121, 145. 89 See P Palchetti, ‘Interpreting “Generic Terms”: Between Respect for the Parties’ Original Intention and the Identification of the Ordinary Meaning’ in N Boschiero et al. (eds), Inter­ national Courts and the Development of International Law: Essays in Honour of Tullio Treves (Springer 2013) 91–105; and J Arato, ‘Subsequent Practice and Evolutive Interpre­ tation: Techniques of Treaty Interpretation Over Time and Their Diverse Consequences’ (2010) 9 Law and Practice of International Courts and Tribunals 443, 468. 90 Namibia Advisory Opinion (n 86), [53]. The Appellate Body of the WTO, in the ShrimpTurtle Case, adopted a similar view when interpreting the term ‘exhaustible natural resources’. It concluded that ‘the generic term “natural resources” in Article XX (g) of the WTO Agreement is not “static” in its content or reference but is rather “by definition evolu­ tionary” ’. See Import Prohibition of Certain Shrimp and Shrimp Products, WTO Appellate Body, WT/DS58/AB/R (1998), [130–131].

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to the General Act of 1928 are general concepts subject to change with the evolution of international law.91 The Court held that: Once it is established that the expression “the territorial status of Greece” was used in Greece’s instrument of accession as a generic term denoting any matters comprised within the concept of territorial status under gen­ eral international law, the presumption necessarily arises that its meaning was intended to follow the evolution of the law and to correspond with the meaning attached to the expression by the law enforce at any given time. This presumption, in the view of the Court, is even more compel­ ling when it is recalled that the 1928 Act was a convention for the pacific settlement of disputes designed to be of the most general kind and of con­ tinuing duration, for it hardly seems conceivable that in such a convention terms like “domestic jurisdiction” and “territorial status” were intended to have a fixed content regardless of the subsequent evolution of interna­ tional law.92 The evolutionary nature of generic terms is also confirmed in the case of Costa Rica v. Nicaragua, concerning a dispute over whether the generic term ‘commerce’ incorporated in the 1858 Treaty of Limits covers only the pur­ chase and sale of physical goods or also includes services. The ICJ, reaffirm­ ing its previous ruling in the Aegean Sea Continental Shelf Case, held that where the parties have used generic terms in a treaty, the parties necessar­ ily having been aware that the meaning of the term was likely to evolve over time, and where the treaty has been entered into for a very long period or is ‘of continuing duration’, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning.93 Accordingly, the ICJ unanimously decided that the present meaning of the term ‘commerce’ includes services such as the transport of passengers and tourists, for those activities can be commercial in nature nowadays.94 Gener­ ally, the jurisprudence of international courts and tribunals confirms that generic terms and concepts within a treaty are evolutionary and draw their

91 Aegean Sea Continental Shelf Case (Greece v Turkey) (Judgement) [1978] ICJ Rep 3. The Aegean Sea Continental Shelf case concerned the interpretation of generic terms used in Greece’s reservation to a treaty – the 1928 Act dealing with the pacific settlement of disputes. 92 Ibid., [77] (emphasis added). 93 Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgement) [2009] ICJ Rep 213, [66] (emphasis added). 94 Ibid., [71 & 156(1)(b & c)]. For a detailed discussion, see M Dawidowicz, ‘The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflections on Costa Rica v Nicara­ gua’ (2011) 24(1) Leiden Journal of International Law 201.

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evolving meaning from any relevant rules of international law applicable at the time of the interpretation of the treaty, pursuant to Article 31(3)(c) of the VCLT. The LOSC – as a constitution for the oceans – contains several generic terms, concepts, and expressions that are potentially evolutionary. Boyle observes that ‘[t]here is no doubt that the LOSC need not be interpreted as if it were a static instrument, cast in stone somewhere around 1982. Many of its terms are likely to be inherently evolutionary’.95 The expressions ‘proper conservation and management measures of living resources’, ‘economic needs of coastal fishing communities’, references to ‘generally accepted inter­ national rules and standards’ or ‘other rules of international law’, and refer­ ences to ‘special circumstances’ in the delimitation of overlapping territorial seas, among many others, are examples of evolutionary concepts contained in the LOSC.96 These evolutionary terms and concepts entail evolutive rights and obligations on the State Parties consistent with newly emerged legal regimes.97 Thus, Article 31(3)(c) of the VCLT requires the use of relevant human rights treaties, rules of customary international law, and general principles related to human rights law in interpreting States’ obligations under the LOSC and its related agreements. The argument that ‘courts must necessar­ ily approach the interpretation of the LOSC by reference to Article 31(3)(c) in order to preserve the integrity and global character of the Convention’98 includes international human rights law. The separate opinion of Judge Weeramantry in the case of the Gabčikovo-Nagymaros Project is instructive in this regard. Judge Weeramantry opined that: Treaties that affect human rights cannot be applied in such a manner as to constitute a denial of human rights as understood at the time of their application. A  Court cannot endorse actions which are a violation of human rights by the standards of their time merely because they are taken under a treaty which dates back to a period when such action was not a violation of human rights.99 In the Arctic Sunrise Arbitration, the Netherlands requested the Tribunal ‘interpret the relevant provisions of the UNCLOS in light of international

95 A Boyle, ‘Further Development of the 1982 Convention on the Law of the Sea’ (n 12), 46 (emphasis added). 96 Ibid., 46–48. 97 The relevance of the generic terms of the LOSC in recognizing the rights of indigenous peo­ ples to marine space and resources is discussed in Section 6 of this chapter. 98 A Boyle, Further Developments (n 12), 46. 99 Case Concerning the Gabčikovo-Nagymaros Project (Hungary v Slovakia) (Judgement) [1997] ICJ Rep 7, Separate Opinion of Judge Weeramantry, 114.

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human rights law, in conformity with Article 31(3)(c) of the [VCLT]’.100 The Tribunal acknowledged that the provision allows it to use relevant norms of human rights law to interpret the content and scope of the freedom of navigation and the limits of State powers that emanate from the LOSC.101 Therefore, Article 31(3)(c) serves as an important interpretation tool to ‘cross-fertilize’102 the various rules of human rights law and the law of the sea. The inter-temporal component of the provision is particularly useful as it enables newly evolving norms of human rights law pertaining to indigenous peoples to be embraced. Overall, the law of the sea regime cannot be completely separate from international human rights law. The numerous cross-referencing clauses and relationship and applicable law provisions of the LOSC help connect the two bodies of international law. The Convention must also be interpreted and applied in accordance with the rules of treaty interpretation, which allow consideration of rules of international human rights law to the extent that context so requires. These approaches interweave the law of the sea regime with that of international human rights law, allowing the former to operate within the larger context of international law, including human rights law. 4. Specific areas of interaction between the rights of indigenous peoples and the law of the sea The general mechanisms of interaction between the law of the sea and human rights law (discussed above) apply mutatis mutandis with respect to the rights of indigenous peoples relating to marine space and resources. This sec­ tion explores specific examples of the interaction between the law of the sea and the law pertaining to the rights of indigenous peoples. It examines cases where a coastal State has rights and discretionary powers under the LOSC and where it may be obliged to exercise those powers in such a way that respects the rights of indigenous communities – irrespective of whether such communities are citizens of that State or a neighboring State. 4.1 Coastal State powers in the internal waters and indigenous rights The LOSC recognizes the sovereignty of coastal States with respect to their internal waters and does not impose additional obligations, such as the duty to recognize a right of innocent passage.103 As a result, there is nothing in the 100 101 102 103

Arctic Sunrise Arbitration (n 32), [176].

Ibid., [197–198].

P Sands, Treaty, Custom and the Cross-Fertilization of International Law (n 9), 87 & 95.

LOSC (n 2), Art 2(1).

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LOSC that precludes a coastal State from setting aside a portion of its inter­ nal waters as an exclusive fishing area for an indigenous community, from recognizing an indigenous harvesting priority, or from recognizing a sacred site and preventing others from accessing that site. Nor does the LOSC pre­ clude the coastal State from recognizing the traditional access and fishing rights of members of an indigenous community from an adjacent State.104 While the LOSC may not require the coastal State to do any of these things, international human rights law may require it to do so in specific circum­ stances.105 The LOSC does not prevent a coastal State, in its internal waters, from fulfilling any obligations to indigenous communities that it may have under general and more specific international law. Moreover, Article 7(5) of the LOSC may allow a coastal State to rely on indigenous use patterns in support of a more extensive internal waters claim.106 Article 7(5) provides that where geographical circumstances107 make it permissible for the coastal State to draw straight baselines, ‘account may be taken, in determining particular baselines, of economic interests pecu­ liar to the region concerned, the reality and the importance of which are clearly evidenced by long usage’.108 This provision is drawn directly from the ICJ’s decision in the Anglo-Norwegian Fisheries Case.109 In that case, the Court held that ‘[t]here is one consideration not to be overlooked, the scope of which extends beyond purely geographical factors: that of certain eco­ nomic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage’.110 The ICJ further held that ‘such rights [economic rights peculiar to the region], founded on the vital needs of the population and attested by very ancient and peaceful usage, may legitimately be taken into account in drawing [a straight baseline to enclose expansive internal waters]’.111 The Court emphasized the fact that in ‘this barren region, the inhabitants of the coastal zone derive their livelihood essentially from fishing’112 to conclude in favor of Norway’s approach to drawing a straight baseline enclosing extensive areas of internal waters. The judgment offers

104 See Chapter 8 for a detailed discussion of State practice on TFRs of indigenous communi­ ties of one State within the internal waters of another State. 105 See Chapter 4 of this book. 106 For further discussion, see MJ Valencia and D VanderZwaag, ‘Maritime Claims and Man­ agement Rights of Indigenous Peoples: Rising Tides in the Pacific and Northern Waters’ (1989) 12 Ocean & Shoreline Management 125. 107 LOSC (n 2), Art 7(1) – ‘where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity’. 108 Ibid., Art 7(5). 109 Anglo-Norwegian Fisheries Case (United Kingdom v Norway) (Judgement) [1951] ICJ Rep 116. 110 Ibid., 133. 111 Ibid., 142 (emphasis added). 112 Ibid., 128 (emphasis added).

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an example of how the Court looked to equity/reasonableness in favor of the coastal indigenous communities when the baselines were to be drawn.113 The LOSC incorporates this requirement of reasonableness, recognizing that consideration of the rights of coastal indigenous communities may affect the drawing of baselines. In sum, the coastal State’s unqualified sovereignty within internal waters generally permits the coastal State to fulfill any obligations it may owe to indigenous communities under international human rights law within such waters. As an additional consideration, the coastal State may also rely on the traditional dependence of its indigenous communities when drawing its straight baselines. 4.2 The obligation of coastal States to respect the right/ freedom of navigation of other States and the rights of indigenous peoples The sovereignty of a coastal/archipelagic State extends to the territorial sea and archipelagic waters, but such sovereignty shall be exercised subject to the limitations provided by the terms of the LOSC and other rules of interna­ tional law.114 One of the limits to the sovereignty of the coastal/archipelagic State within these maritime zones is the obligation to recognize the right of all States to innocent passage.115 Coastal States also have a parallel obliga­ tion to respect the freedom of navigation of all States within the EEZ.116 This may cause a coastal/archipelagic State to take the position that such law of the sea obligations limit the extent to which it is able to accommo­ date the rights and interests of indigenous communities. This appears to be the position, for example, in Australia. Several indigenous communities in Australia have brought applications under the Native Title Act117 for judicial declarations as to the existence of a native title or rights in relation to marine

113 114 115 116 117

See EL Enyew and N Bankes, Interaction (n 38), 156.

LOSC (n 2), Arts 2 & 49.

Ibid., Arts 17, 52 & 53.

Ibid., Arts 56(2) & 58(1).

The Native Title Act (Act No 110 of 1993). The Native Title Act was introduced by the

Commonwealth government in response to the ground-breaking decision of the High Court of Australia in Mabo and Others v The State of Queensland (Mabo No 2) [1992] HCA 23, 175 CLR 1 (3 June 1992). In that case, which was brought by the Merriam Islanders of Torres Strait, the High Court rejected the persisting doctrine of terra nullius and held that Australia was not vacant when colonized by the British in 1788, but was occupied by Aboriginal and Torres Strait Islander peoples, who had their own laws and customs. Accordingly, the High Court ruled that the Meriam people ‘were entitled as against the whole world to possession, occupation, use and enjoyment of the lands of Murray Islands’. See generally N Sharp, No Ordinary Judgement: Mabo, the Murray Islanders’ Land Case (Aboriginal Studies Press 1996).

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areas.118 The leading cases in this respect are Commonwealth v Yarmirr119 (also known as the Croker Island Case) and Akiba v Commonwealth.120 The principal issue before the High Court in Yarmirr was whether the claimants could maintain exclusive rights in relation to the claimed territorial sea areas (waters near Croker Island in the Northern Territory).121 The majority of Justices concluded that a claim of exclusive rights of indigenous peoples – for the harvesting of resources or the protection of spiritual and sacred sites – was inconsistent with the LOSC rules dealing with the right to innocent passage and, thus, could not be sustained.122 However, drawing heavily on international law principles, particularly the principle of non-discrimination, Justice Kirby took a different view in his dissenting opinion. He held that any claimed exclusive rights would have to be subject to the right of innocent passage, but this did not ‘necessarily defeat all other legal rights within the area to control access and exclude others’,123 including an exclusive indig­ enous right to fish established in accordance with the laws and customs of the community.124 In Akiba, the plaintiffs claimed non-exclusive rather than exclusive rights in the territorial sea and EEZ of the Torres Strait. In this case, the High Court unanimously confirmed that the Torres Strait Islanders held native title rights to particular sea areas and that these rights included the right to fish and hunt MLRs for commercial purposes, the right to visit culturally significant marine sites, and the right to conduct spiritual practices and ceremonies.125 However, it made clear that such rights are subject, inter alia, to ‘the interna­ tional right of innocent passage through the territorial sea’, the freedom of navigation in the EEZ,126 and other rights recognized under the Torres Strait Treaty.127 These cases demonstrate that while the Australian High Court has

118 According to the Native Title Act, the continuity and consistency principles should be satis­ fied to maintain native title rights in marine areas. 119 The Commonwealth v Yarmirr [2001] HCA 56, 75 ALJR 1582. 120 Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Aus­ tralia [2013] HCA 33, 250 CLR 209. 121 All of the areas claimed were within Australia’s territorial sea, Yarmirr (n 119), [18 & 66]. The claimed rights included the right ‘to exclude or restrict others from entering any area of the estate’ [85]. 122 Ibid., [96 & 98].

123 Ibid., [273].

124 Ibid., [292–296 & 320]. For a detailed discussion, see EL Enyew and N Bankes, Interac­ tion (n 38), 158–159; S Hepburn, ‘Native Title in Coastal and Marine Waters’ in R Baird and DR Rothwell (eds), Australian Coastal and Marine Law (The Federation Press 2011) 296–321; SB Kaye, ‘Torres Strait Native Title Sea Claim: Legal Issues Paper’, National Native Title Tribunal Occasional Papers Serious, No 2/2004. 125 Akiba (n 120), [11 & 753].

126 Ibid., [753].

127 Ibid., [754]. For a detailed discussion, see L Godden, ‘The Evolving Governance of

Aboriginal Peoples and Torres Strait Islanders in Marine Areas in Australia’ in S Allen,

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been prepared to recognize non-exclusive indigenous rights within the ter­ ritorial sea and the EEZ, it has rejected exclusive title claims because of, inter alia, concerns that such rights would be inconsistent with the right of innocent passage or freedom of navigation. A similar reluctance to recognize indigenous title claims in marine areas while recognizing non-exclusive har­ vesting rights is also evident in Canadian practice.128 The above sample of cases demonstrate that some coastal States may rely on their obligations to respect the right of innocent passage and the freedom of navigation under the LOSC as a reason for failing to recognize the rights of indigenous communities within the territorial sea and EEZ. The important issue explored in this section is, therefore, whether and to what extent the LOSC confers on coastal States the power to regulate ships navigating within waters under their sovereignty or jurisdiction to protect the rights of indig­ enous peoples. Since a coastal State has sovereignty within the territorial sea, it has full competence (discretion) to regulate innocent passage in order to recognize indigenous title claims (exclusive rights) as long as that falls within the threshold of its obligation relating to innocent passage. The coastal State’s obligation is the obligation ‘not [to] hamper the innocent passage of foreign ships’ or ‘not to impose requirements on foreign ships which have the practi­ cal effect of denying or impairing the right of innocent passage’.129 While the meaning of the term ‘deny’ is clear, the precise content of the terms ‘hamper’ and ‘impair’ is not straightforward. Barnes observes that these latter terms refer to ‘situations where [regulatory] impositions on passage are so strin­ gent that passage becomes impossible or too burdensome to be practical’.130 Whether the coastal State’s regulation has the effect of hampering or impair­ ing innocent passage should be assessed on a case-by-case basis.131 Thus, as long as its measures do not deny, hamper, or impair passage, there is nothing in the LOSC that limits the right of a coastal State to manage innocent pas­ sage to recognize the rights of indigenous peoples. The LOSC also makes specific provisions to enable a coastal State to regu­ late the right of innocent passage. For example, pursuant to Article 21 of the LOSC, a ‘coastal State may adopt laws and regulations, in conformity with

128

129 130 131

N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 123–148. For a detailed discussion of indigenous title in the context of marine areas in Canada, see N Bankes, ‘Modern Land Claims Agreements in Canada and Indigenous Rights with Respect to Marine Areas and Resources’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 149–171. LOSC (n 2), Art 24(1) (emphasis added). R Barnes, ‘Article 24 LOSC: Duties of the Coastal State’ in A Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Verlag CH Beck oHG 2017) 219. Ø Jensen, Coastal State Jurisdiction and Vessel Source Pollution: The International Law of the Sea Framework for Norwegian Legislation, FNI Report 3/2006, 22.

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the provisions of [the LOSC] and other rules of international law, relating to innocent passage through the territorial sea’ in respect to a number of matters.132 These matters include, inter alia, the safety of navigation and the regulation of maritime traffic; the conservation of the living resources of the sea, which, for example, includes measures to reduce vessel strikes on marine mammals; the prevention of infringement of the fisheries laws and regulations of the coastal State; and the preservation of the environment of the coastal State and the prevention, reduction, and control of pollution thereof.133 These grounds are general, and a coastal State may adopt laws and regulations relat­ ing to innocent passage to recognize indigenous fisheries, to preserve tradition­ ally used MLRs and their habitat, or to protect indigenous fishing grounds or culturally important sites from damage by pollution. It is important to note that Article 1(1(4)) of the LOSC defines ‘pollution’ broadly as the introduction by man . . . of substances or energy into the marine environ­ ment which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, [and] hindrance to marine activities, including fishing and other legitimate uses of the sea.134 Jensen observes that this broad definition contributes to a larger measure of coastal State regulatory discretion.135 Tanaka similarly argues that given its open-textured nature, Article 1(1(4)) of the LOSC ‘must be interpreted and applied in light of the recent development of international law, including rules of international environmental law [and human rights law]’.136 Moreo­ ver, since the matters listed under Article 21 of the LOSC are not exhaustive, a coastal State should be able to adopt laws regulating innocent passage for other reasons, including protecting indigenous fishing grounds or sacred sites. This is particularly the case as Article 21 allows a coastal State to regulate innocent passage in conformity with ‘other rules of international law’, which may include international human rights law pertaining to indigenous peoples. More specifically, Article 22 of the LOSC allows a coastal State, ‘where necessary having regard to the safety of navigation’, to establish sea lanes and traffic separation schemes within its territorial sea, taking into account ‘the recommendations of the competent international organization’ (i.e., the IMO).137 This provision neither defines ‘safety of navigation’ nor does

132 133 134 135 136

LOSC (n 2), Art 21(1).

Ibid., Art 21(1)(a, d, e & f).

Ibid., Art 1(1(4)) (emphasis added).

Ø Jensen, Coastal State Jurisdiction and Vessel Source Pollution (n 131), 21.

Y Tanaka, ‘Article 1 LOSC: Use of Terms and Scope’ in A Proelss (ed.), United Nations

Convention on the Law of the Sea: A Commentary (Verlag CH Beck oHG 2017) 23. 137 These recommendations may relate both to general IMO recommendations regarding all sea lanes and traffic separation schemes, and to specific IMO recommendations regarding

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it lay down objective criteria for determining when the establishment of sea lanes and traffic separation schemes is deemed to be necessary for the safety of navigation.138 The term ‘safety of navigation’ includes not only safeguards to persons onboard ships (passengers and crew), things (cargo and other items onboard), and the marine environment139 but may also include the safety of indigenous fishermen engaged in harvesting activities in their traditional fishing grounds. As such, a coastal State should be able to designate sea lanes and traffic separation schemes or adopt other types of ships’ routing measures140 to divert navigation away from traditional fish­ ing grounds and sacred sites located in the territorial sea so as to minimize the threat of accidents to indigenous users (fishermen). Moreover, reading Article 22 in the context of Article 21, which permits a broader range of regulatory controls over vessels in innocent passage, allows a coastal State to introduce sea lanes and traffic separation schemes for reasons other than navigation safety.141 Thus, a coastal State’s decision to designate sea lanes and traffic separation schemes or other ships’ routing measures within the territorial sea may be triggered by its obligation under international law to protect the rights of indigenous peoples.142 A coastal State is free under the LOSC (but also obliged under international human rights law) to exercise its sovereignty over the territorial sea in a manner that recognizes the rights of indigenous peoples as long as it does not deny or impair the right of innocent passage, and that safeguards are in place through the use of IMO recommendations. the particular sea lanes and traffic separation schemes being considered by the coastal State (see BH Oxman, ‘Environmental Protection in Archipelagic Waters and International Straits: The Role of the International Maritime Organization’ (1995) 10 International Jour­ nal of Marine and Coastal Law 467, 476). Pursuant to Article 211(1) and (4) of the LOSC, a coastal State has a similar power to adopt ships’ routing measures, including traffic sepa­ ration schemes, that take the recommendations of the IMO into account to prevent, reduce, and control marine pollution from foreign vessels exercising the right of innocent passage. For a detailed discussion of this point, see J Roberts, ‘Protecting Sensitive Marine Environ­ ments: The Role and Application of Ships’ Routing Measures’ 2005 20(1) International Journal of Marine and Coastal Law 135, 137–138. 138 R Virzo, ‘Coastal State Competences Regarding Safety of Maritime Navigation: Recent Trends’ (2015) 36(71) Seqüência 19, 25. 139 Ibid., 29. 140 Although Article 22 of the LOSC refers only to sea lanes and traffic separation schemes, it has been understood to include other routing measures accepted by the IMO. See R Barnes, ‘Article 22 LOSC: Sea Lanes and Traffic Separation Schemes in the Territorial Sea’ in A Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Ver­ lag CH Beck oHG 2017) 212. 141 Ibid., 211. These measures have been used to protect the marine environment in particu­ lar (see EJ Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (Kluwer Law International 1998) 203). 142 Once a coastal State adopts such measures, all flag States have a corresponding duty to comply with them. See LOSC (n 2), Art 21(4).

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However, the power of a coastal State(s) to regulate navigation is limited in relation to transit passage143 within an international strait and archipelagic sea lanes passage144 through archipelagic waters. In the case of transit passage, coastal States bordering the strait may designate sea lanes and traffic separa­ tion schemes or substitute previously designated sea lanes and traffic separa­ tion schemes with new ones ‘where necessary to promote the safe passage of ships’.145 Such sea lanes and traffic separation schemes must also conform to generally accepted international regulations and be approved by the IMO.146 Similarly, in the case of archipelagic sea lanes passage, archipelagic States may designate sea lanes ‘suitable for the continuous and expeditious passage of foreign ships’ through archipelagic waters.147 These sea lanes shall include ‘all normal passage routes used as routes for international navigation’ or all ‘normal navigational channels’.148 Archipelagic States may also prescribe traf­ fic separation schemes for ‘the safe passage of ships through narrow channels’ within the designated sea lanes.149 Like transit passage in straits, the archipe­ lagic State is also required to refer its proposed designations to IMO ‘with a view to their adoption’ and to ensure that sea lanes and traffic separation schemes ‘conform to generally accepted international regulations’.150 It is evident that, unlike innocent passage (Article 22 of the LOSC), a coastal/archipelagic State’s decision to propose sea lanes and traffic separa­ tion schemes is made solely to ensure the safe, continuous, and expeditious passage of ships.151 The regulatory powers of coastal States bordering straits and archipelagic States are also limited to measures for which they have received approval from IMO.152 In this regard, Oxman observes that: The regimes of transit passage and archipelagic sea lanes passage generally apply in areas where there is no equally convenient alternative route, or in 143 Transit passage is defined as ‘the freedom of navigation and overflight solely for the pur­ pose of continuous and expeditious transit of the strait’ (ibid., Art 38(2)). The regime of transit passage through Straits provides flag States with more liberal navigational rights than does the right of innocent passage. Transit passage includes not only navigation but also overflight and allows ships to operate in their ‘normal mode’ (i.e., submarines may pass submerged). Moreover, transit passage cannot be hampered or suspended even on a temporary basis (ibid., Arts 38, 39 & 44). 144 Ibid., Art 53.

145 Ibid., Art 41(1) & (2).

146 Ibid., Art 41(3) & (4).

147 Ibid., Art 53(1).

148 Ibid., Art 53(4).

149 Ibid., Art 53(6).

150 Ibid., Art 53(9) & (8).

151 This is clear from the definitions of transit passage and archipelagic sea lanes passage pro­ vided under Arts 38(2) and 53(3) of the LOSC respectively. 152 Ibid., Ars 41(4) & 53(9). See also BH Oxman, ‘Environmental Protection in Archipelagic Waters and International Straits: The Role of the International Maritime Organization’ (1995) 10 International Journal of Marine and Coastal Law 467, 476.

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some cases no alternative at all. As a result, interference with navigation in those areas is a more sensitive problem, and the regulatory and enforce­ ment powers of the riparian States over navigation are therefore carefully limited. In contrast to the innocent passage regime, States bordering straits and archipelagic States have no unilateral regulatory power to impose sea lanes, traffic separation schemes, or other safety or pollution measures on ships in transit passage or archipelagic sea lanes passage.153 Thus, the IMO has a ‘cooperative legislative competence’ with coastal/archi­ pelagic States in these respects.154 Therefore, it seems unlikely that a coastal State can unilaterally justify establishing sea lanes, traffic separation schemes, or other ships’ routing measures to protect an indigenous sacred site or to give effect to an exclusive area-based indigenous use right within an interna­ tional strait and archipelagic sea lanes passage. It is also less likely that the IMO will approve coastal/archipelagic State’s proposed regulatory measures on such grounds. In parts of archipelagic waters where archipelagic sea lanes have not been established (or routes normally used for navigation do not exist), ships of all States enjoy the right of innocent passage.155 In such a case, archipelagic States have the competence to regulate innocent passage to recognize indig­ enous rights in the same manner as ordinary coastal States regulate innocent passage in the territorial sea (discussed above). There is also another possible scenario where an archipelagic State may protect the exclusive rights of indig­ enous communities within archipelagic waters – that is if an archipelagic State encloses internal waters within archipelagic waters pursuant to Article 50 of the LOSC.156 In such a case, the regime of internal waters will apply, and the archipelagic State would not have an obligation to respect the right of innocent passage or archipelagic sea lanes passage that would serve to limit its capacity to recognize the exclusive area-based rights of indigenous communities. The powers of the coastal State are even more limited with respect to the recognition of any indigenous rights or interests that might have an impact on navigational freedoms within the EEZ. Given the nature of the EEZ,157

153 BH Oxman, ibid., 476 (emphasis in the original).

154 Ibid., 479; and R Virzo, ‘Coastal State Competences Regarding Safety of Maritime Naviga­ tion (n 138), 26. 155 LOSC (n 2), Art 52. 156 For example, some States – including Trinidad and Tobago, Antigua and Barbuda, and the Philippines – claim internal waters within archipelagic waters in their archipelagic waters legislation. See CR Symmons, ‘Article 50, Part IV: Archipelagic States’ in A Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Verlag CH Beck oHG 2017) 382 & accompanying footnote 19. 157 Some of the freedoms of the high seas referred to in Art 87 – i.e., overflight and the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms – also apply within the EEZ.

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the LOSC provides coastal States with limited possibilities to regulate the freedom of navigation within this maritime zone. One such possibility – pursuant to Articles 211(1), 211(5), and 211(6) of the LOSC – is to prevent pollution of a particular area of the EEZ by establishing, with the approval of the IMO, ships’ routing measures or special areas. Article 211(6)(a) of the LOSC provides that coastal States, with the approval of the IMO, may adopt special mandatory measures, including special areas, to prevent pol­ lution from vessels of a clearly defined area of the EEZ ‘for recognized tech­ nical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic’.158 Since coastal States’ sovereign rights in the EEZ relate only to natural resources, a coastal State should clearly connect the adverse effects of ship-sourced pollution to its EEZ resources in order to make a case for imposing navigational restrictions.159 In addition, a coastal State may also seek to adopt navigational regulatory measures to control the impacts of shipping on its EEZ resources that are not directly associated with pollution. Thus, pursuant to Article 194(5) of the LOSC, a coastal State may adopt measures ‘necessary to protect and preserve rare or frag­ ile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’. For example, Canada amended a traffic separation scheme in the Bay of Fundy for the purpose of reducing ship strikes on North Atlantic right whales. It did so by shifting the traffic lanes of the traffic separation scheme from an area with the highest density of right whales to an area with a lower density.160 Similarly, while Canada and the United States (US) adopted ‘recommendatory areas to be avoided’ in the Roseway Basin and Great South Channel, respectively, Spain and the US have adopted traffic separation schemes in Cabo de Gata and Boston, respectively, to minimize whale strikes.161 That said, all of the above meas­ ures are justified either by the necessity to protect the marine environment or the associated resources rather than the protection of exclusive indig­ enous rights. In conclusion, in considering the interaction between the rights of indig­ enous peoples under international human rights law and the coastal State’s obligation to respect the right/freedom of navigation in the law of the sea, it is important to distinguish between non-exclusive rights and exclusive area-based rights of indigenous peoples that might interfere with the right/ freedom of navigation. Regarding non-exclusive rights, there would seem 158 LOSC (n 2), Art 211(6)(a) (emphasis added).

159 J Roberts, Protecting Sensitive Marine Environments (n 137), 139.

160 Ibid., 140; and GK Silber et al., ‘The Role of the International Maritime Organization in

Reducing Vessel Threat to Whales: Process, Options, Action and Effectiveness’ (2012) 36 Marine Policy 1221, 1226. 161 GK Silber et al., ibid., 1225–1228.

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to be little risk of conflict. Thus, indigenous rights and the right of nav­ igation can exist alongside one another. In such a case, the LOSC does not restrict the manners in which a coastal State may allocate its exclusive resource rights to recognize the rights of indigenous communities or to take special measures to protect those rights, provided they do not impair the right/freedom of navigation. Thus, a coastal State may decide to forego resource development projects within part of the archipelagic waters, the territorial sea, the EEZ, or the continental shelf162 in order to recognize the rights of indigenous communities.163 If a coastal State permits such resource development activities, there is nothing in the LOSC to preclude the coastal State from requiring developers to enter into joint ventures with adjacent indigenous communities or to consult with a view to avoiding prejudice to indigenous rights or to give effect to the right to free, prior, and informed consent (FPIC).164 There is potential for conflict, however, if an indigenous community claims an exclusive right of access to resources or control of certain marine areas for different purposes, such as for preserving cultural and spiritual sites. In this regard, the LOSC confers coastal/archipelagic States with cer­ tain opportunities to manage innocent passage in the territorial sea and archipelagic waters by adopting ships’ routing measures. Yet, coastal/archi­ pelagic State’s powers to regulate ships in transit passage, archipelagic sea lanes passage, and navigating in the EEZ are very limited. It will be dif­ ficult for the coastal State to recognize the exclusive rights of indigenous communities within these bodies of water without breaching its obligations owed to other States – i.e., the right of other States to navigate freely. Thus, a decision by a coastal State to deny exclusive indigenous rights on this basis might be a legitimate justification consistent with Article 311(2) of the LOSC, which requires a coastal State to discharge its obligations under other agreements or norms of international law only in a manner that they do not impede the exercise of rights by other States (discussed above). Yet, the coastal State may have another possibility, in special circumstances, to protect exclusive indigenous rights by designating a Particularly Sensitive Sea Area (PSSA) and adopting associated protective measures (APMs), as discussed in the next section. 162 Like the EEZ, there is nothing in the LOSC preventing a coastal State from recognizing the rights of indigenous communities to harvest certain sedentary fisheries or pearl harvesting. The LOSC also does not prohibit the development of the continental shelf to protect indig­ enous interests so long as it does not result in any unjustifiable interference with navigation and other rights and freedoms of other States (LOSC (n 2), Art 78(2)). 163 See N Bankes, ‘International Human Rights Law and Natural Resources Projects within the Traditional Territories of Indigenous Peoples’ (2009) 47 Alberta Law Review 457. 164 See EL Enyew and N Bankes, Interaction (n 38), 160; and RL Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Marti­ nus Nijhoff 2014) 89.

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4.2.1 IMO’s PSSA regime: a special approach to manage navigation The referential incorporation of GAIRS in the relevant provisions of the LOSC dealing with navigation165 allows coastal States to apply relevant IMO instruments.166 Thus, a coastal State or two or more coastal States may jointly, and with the approval of the IMO, impose additional restrictions on the right/freedom of navigation by designating a certain marine area – including the internal waters, the territorial sea, and the EEZ – as a PSSA.167 The IMO Revised PSSA Guidelines define a PSSA as ‘an area that needs special protec­ tion through action by [the] IMO because of its significance for recognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities’.168 For a particular marine area to be designated as a PSSA, the proposing IMO member State(s) must establish three main elements. First, the State(s) must demonstrate that the proposed marine area fulfills either of the fol­ lowing three criteria: ecological criteria, scientific and educational criteria, or social, cultural, and economic criteria.169 The ecological criteria empha­ size, inter alia, the unique characteristics of the area as a habitat for diverse, rare, threatened, or endangered marine species, as their spawning or breeding ground, or as being a fragile area.170 The scientific and educational criteria refer to the significance of the area for conducting scientific research.171 The social, cultural, and economic criteria refer to the particular social, economic, or cultural importance of the area. This encompasses, inter alia, the special significance of the area for ‘fishing, recreation, tourism, and the livelihoods of people who depend on access to the area’; or the importance of the area for the ‘support of traditional subsistence or food production activities or for the protection of the cultural resources of the local human populations’; or 165 These provisions include, inter alia, Articles 194, 211(1), 211(4) & 211(6) of the LOSC. 166 See W van Reenen, ‘Rules of Reference in the New Convention on the Law of the Sea, in Particular in Connection with the Pollution of the Sea by Oil from Tankers’ (1981) 12 Netherlands Yearbook of International Law 3; and A  Chircop, ‘The IMO, Its Role Under UNCLOS and Its Polar Shipping Regulation’ in RC Beckman et al. (eds), Govern­ ance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States (Brill Nijhoff 2017) 107–143. 167 A PSSA is a more appropriate tool to regulate navigation if the marine area to be protected is not only confined to a single maritime zone, but rather covers more than one maritime zone. See RC Beckman, ‘PSSAs and Transit Passage – Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS’ (2007) 38 Ocean Development and Inter­ national Law 325, 328. 168 IMO, Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (Revised PSSA Guidelines), Assembly Resolution A 24/ Res 982, (adopted on 1 December 2005), [1.2]. The IMO has thus far designated 15 PSSAs and two extensions (see IMO, List of Special Areas, Emission Control Areas and Particularly Sensitive Sea Areas, MEPC.1/Circ.778/Rev.3 (2 July 2018), [7] & Annex 2. 169 See Revised PSSA Guidelines, ibid., section 4. 170 For details, see ibid., [4.4.1–4.4.11]. 171 Ibid., [4.4.15–4.4.17].

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that the area has special importance as cultural heritage due to the presence of significant historical or archeological sites.172 The three criteria of the first main element that the proposing State(s) need to satisfy to designate a PSSA are not cumulative. Thus, the presence of only one criterion (i.e., either the ecological criteria, scientific and educational criteria, or the social, cultural, and economic criteria) is sufficient to fulfill the first main element.173 It is also worth noting that the same criterion need not be present throughout the entire proposed area.174 Second, the proposing State(s) must establish that the area is vulnerable to damage by international shipping activities.175 This requires consideration of, inter alia, vessel traffic characteristics – including types of vessels, the volume and concentration of traffic, and the harmful nature of the substance carried – and other natural risk factors such as hydrographic, meteorologi­ cal, and oceanographic factors.176 Third, the proposing State(s) must identify the appropriate APMs with an identifiable legal basis that can be adopted by the IMO to prevent, reduce, or eliminate the potential damages within the PSSA.177 Indeed, a designation of a PSSA without APMs serves no signifi­ cant purpose. The available APMs include, inter alia, ship reporting systems and ship’s routing measures – such as pilotage schemes, traffic separation schemes, two-way routes, recommended tracks, precautionary areas, or areas to be avoided.178 These APMs must be based either on Articles 211(1) and 211(6) of the LOSC179 or on an IMO instrument such as the Interna­ tional Convention for the Prevention of Pollution from Ships (MARPOL)180 or International Convention for the Safety of Life at Sea (SOLAS).181 172 173 174 175 176 177 178

179

180

181

Ibid., [4.4.12–4.4.14] (emphasis added).

Ibid., [4.4].

Ibid.

Ibid., section 5. The potential damages should relate to pollution and other damages caused

by ships, but does not include damage from dumping activities [4.2]. Ibid., [5.1 & 5.2]. Ibid., section 6 [6.1.3]. Ibid., [6.1.1 & 6.1.2]; IMO, General Provisions on Ships’ Routing, Assembly Resolution A. 572(14), (adopted on 20 November 1985, as amended), Reg 2.1. For a detailed discussion on ships’ routing measures, see J Roberts et al., ‘The Western European PSSA: A “Politically Sensitive Sea Area” ’ (2005) 29 Marine Policy 431; and HP Huntington et al., ‘The Role of Areas to Be Avoided in the Governance of Shipping in the Greater Bering Strait Region’ (2019) 110 Marine Policy 103564. Extension of the Existing Great Barrier Reef PSSA to include the Torres Strait Region, Sub­ mitted by Australia and Papua New Guinea (The Joint Australia-PNG PSSA Application), MEPC 49/8 (10 April 2003) (discussed further on) also references LOSC Arts 41(3), 42(1) (a), 39(2) & 194 in addition to Arts 211(1) & (6) as a legal basis for adopting APMs (see [5.13–5.16]). International Convention for the Prevention of Pollution from Ships (MARPOL), con­ cluded at London on 2 November 1973 (as amended by the Protocol of 1978), 1340 UNTS 61 (entered into force 2 October 1983), Annexes I, II & IV. SOLAS (n 14), Chapter V, Regs 8, 10, 11 & 17. For a detailed discussion of the IMO’s PSSA regime, see MJ Kachel, Particularly Sensitive Sea Areas: The IMO’s Role in Protecting

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In light of the above criteria, it is possible that PSSAs can be used to pro­ tect the socio-economic and cultural values of indigenous communities. PSSAs have been justified entirely on ecological or scientific grounds.182 and while no PSSA has ever been justified solely on cultural grounds, there are certain examples where States have supported PSSA proposals and APMs by reference to the importance of the area and its resources to the livelihoods and cultural values of indigenous communities. These examples include the joint application by Australia and Papua New Guinea for the Extension of the Great Barrier Reef PSSA to include the Torres Strait,183 Australia’s appli­ cation to further extend the Torres Strait PSSA to the south west part of the Coral Sea,184 the US’ proposal to designate the Papahānaumokuākea Marine National Monument (Northwestern Hawaiian Islands (NWHI)) as a PSSA,185 and the proposal by Papua New Guinea to establish Jomard Entrance as a PSSA.186 All of these examples include the cultural and socio-economic inter­ ests of indigenous/artisanal communities as part of the rationale for designat­ ing the PSSA and the APMs. While the US’s Papahānaumokuākea Marine National Monument PSSA application references the significance of the NWHI to native Hawaiian history and culture,187 Australia’s Coral Sea extension PSSA application emphasizes the protection of the cultural and economic rights of Aboriginal communities adjacent to the northern part of the Great Barrier Reef and the Torres Strait Islanders.188 The latter application states that many Aboriginal communities adjacent to the Great Barrier Reef and the Torres Strait Island­ ers ‘undertake traditional use of marine resources activities to provide tra­ ditional food, practice their living maritime culture, and to educate younger generations about traditional and cultural rules and protocols’.189 The former application makes specific reference to a number of sacred places present in the islands and emphasizes that ‘ensuring a healthy, intact ecosystem in the NWHI plays an important role in perpetuating Native Hawaiian cultural

182 183 184

185 186 187 188 189

Vulnerable Marine Areas (Springer 2008); and IU Jakobsen, Marine Protected Areas in International Law: An Arctic Perspective (Brill Nijhoff 2016) 389–403. For example, 11 of the 15 PSSAs thus far adopted, including Australia’s Great Barrier Reef PSSA, make no express reference to indigenous use of the area. The Joint Australia-PNG PSSA Application (n 179). Application for Extension of the Great Barrier Reef and Torres Strait PSSA to include the Southwest part of the Coral Sea (Coral Sea Extension PSSA), Submitted by Australia, MEPC 68/10/1 (6 February 2015). Application for Designation of the Papahānaumokuākea Marine National Monument as a Particularly Sensitive Sea Area, Submitted by the United States, MEPC 56/8 (5 April 2007). Application for Designation of the Jomard Entrance as a PSSA, Submitted by Papua New Guinea, MEPC 70/8 (11 July 2016). The Papahānaumokuākea Marine National Monument PSSA Application (n 185), [3.12.1 & 3.12.2]. The Coral Sea Extension PSSA Application (n 184), [69]. Ibid., [69].

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traditions’.190 Similarly, Papua New Guinea partly justified its Jomard Entrance PSSA application on the importance of the marine resources sur­ rounding the Jomard Entrance to the subsistence of artisanal fishing com­ munities in the area.191 The joint Australia-Papua New Guinea PSSA application is the most detailed in its use of indigenous rights justification.192 The application con­ tains several references to the distinctive cultural practices of the Torres Strait Islanders, noting that the Islanders ‘are bound to the sea by their customs, lifestyle, and history’.193 The application notes that the Islanders use the sea to perform rituals, traditions, observances, and beliefs that form the basis of their social organizations and that ‘[t]raditional fishing is an important way of life and references to sea animals, reefs, islands, and the ocean are integral to Islander legends’.194 The application further warns of the potentially devastating consequences of an oil or chemical spill to the Islanders as follows: The extremely high cultural, social, and economic significance of marine resources to the people of Torres Strait could lead, in the event of an oil or chemical spill, to a total failure of their subsistence fisheries and abandon­ ment of affected islands, or a completely imported diet, until the marine ecosystem re-established itself.195 The IMO approved all the above proposals196 and explicitly affirmed that the protection of the cultural values and traditional lifestyles of indigenous 190 The Papahānaumokuākea Marine National Monument PSSA Application (n 185), [3.12.1 & 3.12.2). See also HK Guth et al., ‘Protecting and Perpetuating Papahānaumokuākea: Involvement of Native Hawaiians in Governance of Papahānaumokuākea Marine National Monument’ in J van Dyke et al. (eds), Governing Ocean Resources: New Chal­ lenges and Emerging Regimes: A  Tribute to Judge Choon-Ho Park (Martinus Nijhoff 2013) 407–425; K Kikiloi et al., ‘Papahānaumokuākea: Integrating Culture in the Design and Management of One of the World’s Largest Marine Protected Areas’ (2017) 45(6) Coastal Management 436. 191 The Jomard Entrance PSSA Application (n 186), [22–27]. The Philippines’ Tubbataha Reefs Natural Park PSSA application also makes limited reference to the significance of the area to artisanal fisheries (see Designation of the Tubbataha Reefs Natural Park as a Particularly Sensitive Sea Area, Resolution MEPC 294(71) (Adopted on 7 July 2017), Annex 1, [3.2]. 192 For detailed discussion of the Joint Australia-PNG PSSA Application and the IMO’s approval, see RC Beckman, PSSAs and Transit Passage (n 167). 193 The Joint Australia-PNG PSSA Application (n 179), [3.2.3.1]. 194 Ibid., [3.2.3.2 & 3.2.3.3]. With respect to the economic benefit of the area to the Torres Islanders, see [3.2.1.1 & 3.2.1.3]. 195 Ibid., [4.3.2]. For further discussion, see J Roberts, ‘Compulsory Pilotage in International Straits: The Torres Strait PSSA Proposal’ (2006) 37 Ocean Development and International Law 93. 196 See IMO, List of Special Areas, Emission Control Areas and Particularly Sensitive Sea Areas (n 168), Annex 2.

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peoples – including traditional fishing – is one of the rationales for its approval of the proposed PSSA.197 In conclusion, the Revised PSSA Guidelines recognize the protection of social, cultural, and economic values as integral components of the PSSA designation criteria. This gives coastal States the possibility to designate PSSAs and adopt APMs (including areas to be avoided) to protect marine areas valued by indigenous peoples. Enyew and Bankes observe that in some cases, the coastal State may not only have an opportunity but may also have an obligation to seek PSSA designation and APMs in order to protect exclusive indigenous rights.198 They argue that ‘if the risk of an oil or chemi­ cal spill is . . . culturally devastating . . . it does not seem unreasonable to suggest that article 27 of ICCPR . . . requires the coastal State to take posi­ tive measures to protect the cultural integrity of its indigenous communi­ ties’.199 Requiring the designation of a PSSA and the adoption of appropriate APMs from the IMO could be considered as one such positive measure that a coastal State can take. 4.3 The duty of coastal States to manage and conserve MLRs and the rights of indigenous peoples Unregulated harvest of MLRs by a wide range of user groups may cause overexploitation of such resources. This threat of overexploitation makes the conservation and management of MLRs an essential aspect of the law of the sea regime. Accordingly, various instruments of the law of the sea pro­ vide rules governing the conservation and management of MLRs and require coastal States to adopt different measures, including imposing a moratorium on harvesting certain MLRs or a decision to establish a marine protected area (MPA).200 However, such conservation and management measures may have negative consequences on indigenous communities who have long-standing customary harvesting rights. This raises a question as to whether and to what extent a coastal State’s conservation obligations may limit the power of the coastal State to recognize the rights of indigenous peoples.

197 See Designation of the Torres Strait as an Extension of the Great Barrier Reef Particularly Sensitive Sea Area, Resolution MEPC 133(53) (adopted on 22 July 2005), Annex 1, [2.2 & 2.3]; Designation of the Papahānaumokuākea Marine National Monument as a Particu­ larly Sensitive Sea Area, Resolution MEPC 171(17) (adopted on 4 April 2008), Annex 2, sec 2; Designation of the South-west Coral Sea as an Extension of the Great Barrier Reef and Torres Strait Particularly Sensitive Sea Area, Resolution MEPC 268 (68) (adopted on 15 May 2015), Annex 2, sec 2; and Designation of the Jomard Entrance as a Particularly Sensitive Sea Area, Resolution MEPC 283 (70) (adopted on 28 October 2016), Annex 2, sec 3. 198 EL Enyew and N Bankes, Interaction (n 38), 165. 199 Ibid. 200 See Chapter 5 of this book for a detailed discussion.

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While the LOSC expressly recognizes the conservation and management of MLRs as one of its underlying objectives without restriction to maritime zones,201 it does not impose specific obligations on coastal States to conserve and manage the living resources of the territorial sea, archipelagic waters, and the continental shelf. However, the obligation of coastal States to pro­ tect and preserve the marine environment under Part XII of the LOSC has been interpreted to include not only measures aimed strictly at controlling marine pollution but also to include the conservation of the living resources of the sea within all maritime zones.202 The South China Sea Tribunal con­ cluded that the obligation of States under Article 192, read together with Article 194(5) of the LOSC, ‘extends to the prevention of harms that would affect depleted, threatened, or endangered species indirectly through the destruction of their habitat’; and that ‘a failure to take measures to prevent these practices would constitute a breach of Articles 192 and 194(5) of the Convention’.203 That said, the LOSC does not prescribe the type of measures a coastal State must adopt. This gives the coastal/archipelagic State full dis­ cretion, as a manifestation of its sovereignty or sovereign right, to adopt any measures it deems appropriate to conserve and manage the resources of the territorial sea, archipelagic waters, and the continental shelf. This freedom, in turn, allows the coastal State to adopt such conservation and management measures consistently with the rights of indigenous peoples. Similarly, although the LOSC imposes several specific obligations on a coastal State to take various measures to manage and conserve MLRs of the EEZ, the Convention simultaneously grants the coastal State broad discretion to adopt those measures in a manner that accommodates indigenous rights. For example, Article 61 of the LOSC – the general provision applying to the conservation and management of all categories of MLRs – requires coastal States to take proper conservation and management measures, which must be designed by taking into account the ‘economic needs of coastal fishing communities’.204 The phrase ‘economic needs of coastal fishing communities’ is broad which must include the economic needs of indigenous communities living along the coastlines. The ‘economic needs’ of the concerned indigenous communities also include, at a minimum, their subsistence needs consistent with the human right of indigenous peoples not to be deprived of their means of subsistence.205 Thus, the LOSC allows coastal States to design their conser­ vation and management measures of MLRs in harmony with their obligation to respect the human rights of their coastal indigenous communities. 201 202 203 204 205

LOSC (n 2), preamble, recital 4.

See South China Sea Arbitration (n 55), [940, 945 & 456].

Ibid., [959, 960].

LOSC (n 2), Art 61(2) & (3) (emphasis added).

See Chapters 3 and 4 of this book for a detailed discussion of the human right to a means

of subsistence.

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Moreover, while a coastal State has a duty to make available to others the harvestable surplus of living resources from the EEZ, the coastal State has broad discretion in making such decisions.206 In this respect, the LOSC permits a coastal State to take account of indigenous rights or interests in making these decisions. In particular, Article 62 provides that in deciding whether to grant access to fishers of other States, ‘the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests’.207 Mentioning ‘national interest’ first, amongst the relevant list of factors to be taken into account in deciding access to other States, Article 62(3) gives increased weight and priority to the national interests of coastal States.208 The term ‘national interest’ is also broad and, as Burke notes, it might ‘embrace all conceivable interests that could in vary­ ing degrees bear on fisheries, including political . . . educational, ecological, cultural, [and] religious . . . objectives’.209 Thus, the coastal State can freely exercise its discretion to limit the access rights of nationals of other States to protect the rights of its own indigenous communities as part of its national interests. This position is further reiterated under Articles 69(2)(a) and 70(3) (a) of the LOSC, which require, respectively, that the coastal State give access to land-locked and geographically disadvantaged States to exploit the living resources of its EEZ only when such access has no detrimental effect on its own coastal indigenous ‘fishing communities or fishing industries’. In this respect, the coastal State has the sole authority to define what constitutes a ‘detrimental effect’ and to determine its existence. Moreover, a coastal State may require other States to enter into a joint venture arrangement with its indigenous communities as a condition of access to the surplus EEZ resources pursuant to Article 62(4)(i) of the LOSC. All the aforementioned provisions of the LOSC provide rich areas for innovation, allowing coastal States to find ways to recognize the rights of their indigenous peoples to the MLRs of the EEZ. It is also evident that the coastal State’s exercise of its discretionary powers in a manner that protects the rights and interests of its own indigenous peoples by excluding or strictly regulating foreign access to its EEZ resources does not constitute an abuse of rights/discretions within the meaning of Article 300 of the LOSC.210 206 See Chapter 5 for a detailed discussion of this point. 207 LOSC (n 2), Art 62(3) (emphasis added). It should be recalled that this broad conferral of authority is also effectively shielded from compulsory and binding dispute resolution by Article 297(3) of the LOSC. See Chapter 5 for a detailed discussion. 208 WT Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Clar­ endon Press 1994) 69. 209 Ibid., 65 & 79 (emphasis added). 210 Article 300 of the LOSC provides that ‘State parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms rec­ ognized in this Convention in a manner which would not constitute an abuse of rights’. For

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A coastal State also has significant leeway in relation to the conservation and management of marine mammals. This is so not only because Article 65 of the LOSC does not impose an obligation to promote optimum utilization but also because it does not impose a mandatory obligation on the coastal State to adopt stricter conservation measures for marine mammals than for other MLRs.211 Hence, the LOSC does not preclude the coastal State from recognizing the rights of indigenous peoples to harvest traditionally used marine mammals. Indeed, it may be argued that ‘the imposition of undue restrictions on indigenous harvesting practices [of marine mammals] might engage the responsibility of the coastal State, especially if such restrictions might be characterized as denying an indigenous community access to its preferred means of subsistence’.212 Pursuant to Article 61(4) of the LOSC, a coastal State may also need to manage fish harvesting levels within the EEZ in order to account for the effects on marine mammals that are har­ vested by indigenous communities.213 Similarly, if a coastal State is a party to another specific agreement that restricts marine mammal harvesting, such as the ICRW, it may be argued that the coastal State has an obligation to seek approval of indigenous harvesting practices from the relevant international organization responsible for that agreement.214 The rights of indigenous peo­ ples to harvest marine mammals are discussed separately in Chapter 7. The UN Fish Stocks Agreement (UNFSA), as an implementing agreement to the LOSC, makes not only an indirect but also direct and explicit refer­ ence to indigenous peoples. Article 5 of the UNFSA requires a coastal State when taking measures for the conservation and management of straddling and highly migratory fish stocks, to ‘take into account the interests of artisa­ nal and subsistence fishers’.215 Although the UNFSA does not define the terms ‘artisanal’ and ‘subsistence’ fishers, these generic terms should be broadly understood as being inclusive of indigenous fishing communities. More expressly, Article 24 of the UNFSA obliges States Parties, while cooperat­ ing to establish conservation and management measures for straddling and highly migratory fish stocks, to take into account the special requirements of developing States, in particular ‘the need to avoid adverse impacts on, and ensure access to fisheries by, subsistence, small-scale and artisanal fishers and

211 212 213

214 215

a detailed discussion of this point, see WT Burke, The New International Law of Fisheries (n 208), 63. LOSC (n 2), Art 65. EL Enyew and N Bankes, Interaction (n 38), 160–161. This approach has been recognized in Canada’s practice. Under Article 16 of the Nunavut Final Agreement, which recognizes special rights for the Inuit within the Outer Land FastIce Zone, Canada commits to managing fisheries ‘so as not to deplete the marine mammal population’ (see N Bankes, Modern Land Claims Agreements in Canada and Indigenous Rights (n 128), 170). See EL Enyew and N Bankes, Interaction (n 38), 161. UNFSA (n 3), Art 5(i) (emphasis added).

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women fish workers, as well as indigenous peoples in developing States, par­ ticularly small island developing States’.216 Although the provision empha­ sizes the protection of indigenous peoples in developing countries, it may have broader application to all States having indigenous fishing communities, irrespective of whether they are developing or developed, island or mainland States. It is also recalled that these provisions have been widely interpreted to apply to the conservation and management of all MLRs under national juris­ diction, irrespective of whether they are straddling and highly migratory fish stocks.217 In its substance, Article 24(2)(b) of the UNFSA imposes dual obli­ gations on cooperating States. First, it imposes the obligation not to intro­ duce conservation and management measures that may have adverse impacts on indigenous peoples (a negative obligation) and, second, the obligation to take positive actions to ‘ensure access to fisheries’ by indigenous peoples. These obligations may require States to take different measures in recog­ nizing the rights of indigenous peoples. Such measures may include, inter alia, (i) providing exemptions from strict conservation measures or recognize preferential harvesting rights to indigenous peoples; (ii) consulting indig­ enous peoples in good faith before introducing fisheries management and conservation measures which may affect them; and (iii) involving indigenous peoples in fisheries management and conservation systems and integrating their traditional knowledge.218 This line of interpretation is reinforced by the rules of the Convention on Biological Diversity (CBD), which applies both to terrestrial and marine biodiversity. The CBD recognizes the close and traditional dependence of many indigenous and local commu­ nities embodying traditional lifestyles on biological resources, and . . . the use of traditional knowledge, innovations, and practices relevant to the con­ servation of biological diversity and the sustainable use of its components.219 Article 8(j) of the CBD imposes further explicit obligations on State par­ ties, subject to their national laws, to ‘respect, preserve, and maintain .  .  . practices of indigenous and local communities’, which are ‘relevant for the conservation and sustainable use of biological diversity’. Article 8(j) further obliges State parties to promote the wider application of indigenous knowl­ edge and practices with the approval and involvement of the holders of such

216 Ibid., Art 24(2)(b) (emphasis added).

217 See Chapter 5 of this book.

218 These obligations resonate well with the human rights of indigenous peoples relating to

marine space and MLRs (see Chapter 4 for a detailed discussion). 219 Convention on Biological Diversity, concluded at Rio de Janerio on 5 June 1992 (CBD), 1760 UNTS 79 (entered into force 29 December  1993), preamble, recital 12 (emphasis added).

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knowledge and practices.220 Similarly, Art 10(c) of the CBD calls upon State parties to protect and encourage the customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable use requirements. These provisions not only recognize the rights of indigenous peoples to harvest MLRs but also affirm the distinct perspectives of indigenous peoples and the important role they play in the conservation and management of such resources. Another important development in the UNFSA concerning the conserva­ tion and management of MLRs – not included in the LOSC – is the introduc­ tion of the concept of a precautionary approach,221 which is now recognized as a general principle of international law.222 This approach requires States to make their conservation and management decisions based on the best scientific evidence available and to be more cautious when information is uncertain, unreliable, or inadequate.223 Thus, in the absence of adequate sci­ entific information, States should be more prudent and adopt appropriate conservation and management measures to avert unforeseen and irreversible negative consequences. Yet, the precautionary approach does not imply that no fishing can take place until all potential impacts have been assessed and found to be negligible. Rather, it requires that all fishing activities be subject to prior review and authorization and that management plans for the fishery concerned be established.224 Since prohibiting access to fisheries is one of the many precautionary measures, the management plan may focus on other less restrictive measures – such as controlling fishing capacity or reducing the level of harvest, particularly in the case of artisanal fisheries.225 In this manner, a precautionary approach is not necessarily antithetical to the rights of indigenous peoples. Indeed, to the extent that the concept of sus­ tainability226 is entrenched in the customary values of indigenous fishing com­ munities, such communities accept the need for conservation measures and 220 Ibid., Art 8(j). For a detailed discussion of Article 8(j), see J Amiott, ‘Investigating the Convention on Biological Diversity’s Protections for Traditional Knowledge’ (2003) 11(1) Missouri Environmental Law and Policy Review 3. 221 UNFSA (n 3), Art 6 & Annex II: Guidelines for Adopting Precautionary Measures. This approach is also recognized under the FAO, Code of Conduct for Responsible Fisheries (Rome 1995), [6.5 & 7.5]. 222 See O McIntyre and T Mosedale, ‘The Precautionary Principle as a Norm of Customary International Law’ (1997) 9 Journal of Environmental Law 221. 223 UNFSA (n 3), Art 6(1) & (2). 224 FAO, Technical Guidelines for Responsible Fisheries No 2: Precautionary Approach to Capture Fisheries and Species Introduction (FAO 1995) 7. 225 Ibid., 16. See also R Hilborn et al., ‘The Precautionary Approach and Risk Management: Can They Increase the Probability of Success in Fishery Management?’ (2001) 58 Canadian Journal of Fish and Aquatic Science 99, 102–103. 226 The CBD defines ‘sustainable use’ as the use of MLRs ‘in a way and at a rate that does not lead to the long-term decline of [the resources] thereby maintaining its potential to meet the needs and aspirations of present and future generations’ (Art 2).

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act in a precautionary manner when there is a degree of uncertainty about the impact of fishing on MLRs.227 Moreover, the traditional knowledge of indig­ enous peoples can provide valuable information in the absence or inadequacy of scientific evidence – serving as a basis for applying appropriate precaution­ ary measures.228 This requires that coastal States not only engage indigenous communities but also implies that coastal States can adopt measures restricting indigenous communities’ customary rights to fish only when the best scientific evidence, or in its absence or inadequacy, traditional knowledge, indicates the need for stricter conservation.229 In the latter case, short-term restrictive con­ servation measures are justifiable to ensure the sustainability of resources and thereby maintain the long-term inter-generational interests of indigenous com­ munities – constituting legitimate limitations to the rights of indigenous peo­ ples. Hence, as Hilborn et al. rightly observe, ‘the protection of [indigenous] fishing communities is a component of the precautionary approach’.230 In conclusion, the obligation of a coastal State to conserve and manage MLRs under the law of the sea does not necessarily limit the coastal State’s ability to recognize the rights of indigenous peoples within waters under its national jurisdiction. Both the LOSC and the UNFSA confer on coastal States a wide margin of appreciation in adopting appropriate conservation and management measures for MLRs. As a result, they allow the coastal State to use its broad discretion in a manner that protects the rights and interests of indigenous peoples consistent with its obligations under international human rights law. There is thus a non-conflictual interaction between the human rights law pertaining to indigenous peoples and the law of the sea rules on the conservation and management of MLRs. Other soft law instruments, such as FAO instruments, also make this interaction clearer. 4.3.1 The FAO Fisheries Instruments The fisheries-related instruments of the FAO have been used to promote the implementation of the main law of the sea treaties. In particular, the

227 FAO, The Code of Conduct for Responsible Fisheries and Indigenous Peoples: An Opera­ tional Guide (FAO 2009) 13–14. 228 Ibid., 14; MMR Freeman et al., Inuit, Whaling, and Sustainability (Altamira Press 1998) 167–170; MJ Roux, RF Tallman, and ZA Martin, ‘Small-Scale Fisheries in Canada’s Arctic: Combining Science and Fisheries Knowledge Towards Sustainable Management’ (2019) 101 Marine Policy 177. 229 See generally L Feris, ‘A Customary Right to Fish when Fish Are Sparse: Managing Con­ flicting Claims Between Customary Rights and Environmental Rights’ (2013) 16(5) Potch­ efstroom Electronic Law Journal 555. 230 Hilborn et al., The Precautionary Approach and Risk Management (n 225), 102. Hilborn et al. argue that the goal of a precautionary approach to fisheries management ‘is not to conserve fish stocks for conservation’s sake but rather to achieve long-term sustainability of both the fish resource and the fishing communities’ (at 102).

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1995 Code of Conduct for Responsible Fisheries231 reiterates, interprets, and amplifies the relevant provisions of the LOSC and the UNFSA – although its scope is much broader than both these treaties.232 The Code of Conduct provides general principles and minimum standards applicable to the conser­ vation and management of fisheries and encourages all States, both members and non-members of the FAO, to implement those standards and principles so as to effectively conserve and sustainably use their fisheries. In this respect, the Code of Conduct requires States to pay particular attention to the needs of local and indigenous communities who depend upon fisheries for their livelihood.233 Thus, Article 7.6.6 stipulates that: When deciding on the use, conservation and management of fisheries resources, due recognition should be given, as appropriate, in accordance with national laws and regulations, to the traditional practices, needs and interests of indigenous peoples and local fishing communities which are highly dependent on fishery resources for their livelihood.234 To duly realize the rights of indigenous communities, the Code of Conduct further requires that coastal States recognize, inter alia, the customary prac­ tices of indigenous communities, recognize their participation in the design and management of conservation measures (including MPAs), and provide ‘preferential access . . . to traditional fishing grounds and resources’.235 Thus, the Code of Conduct clearly acknowledges the necessity of accommodating the rights of indigenous peoples within the framework of States’ conservation and management approaches. To complement the Code of Conduct and other relevant FAO voluntary guidelines,236 the FAO has adopted the Voluntary Guidelines for Securing

231 FAO, Code of Conduct for Responsible Fisheries (n 221). 232 The Code of Conduct applies to all types of fisheries, irrespective of whether they are large or small-scale, marine or freshwater, and includes aquaculture (see Arts 1.2 & 1.3). 233 One of the aims of the Code of Conduct is to ‘promote the contribution of fisheries to food security and food quality, giving priority to the nutritional needs of local communities’ (ibid., Art 2(f)). 234 Ibid., Art 7.6.6 (emphasis added). Art 7.2.2(c) of the Code of Conduct similarly stipulates that when adopting management measures, ‘the interests of fishers, including those engaged in subsistence, small-scale and artisanal fisheries [should be] taken into account’. 235 Ibid., Arts 6.18, 10.1.2  & 10.2.1. See also FAO, The Code of Conduct for Responsible Fisheries and Indigenous Peoples: An Operational Guide (n 227). 236 These Guidelines include, inter alia, the FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forestry in the Context of National Food Security (Tenure Guidelines), (Rome 2012); FAO, Voluntary Guidelines to Support the Pro­ gressive Realization of the Right to Adequate Food in the Context of National Food Secu­ rity (The Right to Food Guidelines), (Rome 2005). Both Guidelines indirectly incorporate a human rights law perspective in dealing with their respective subject matters.

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Sustainable Small-Scale Fisheries (SSF Guidelines)237 – the first international instrument entirely dedicated to small-scale fisheries. The SSF Guidelines are avowedly based on international human rights standards and principles. The Guidelines provide that recognizing the inherent dignity and the equal and inalienable human rights of all individuals, all parties should recognize, respect, promote and protect the human rights principles and their applicability to communities dependent on small-scale fisheries, as stipulated by international human rights standards.238 The Guidelines reference specific human rights norms, including, inter alia, respect for the cultures and ways of life of indigenous peoples, non­ discrimination in fisheries policies and practices, and consultation and par­ ticipation of indigenous peoples in all decision-making processes related to fisheries resources and fishing areas239 – referring in that context to the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).240 The substantive provisions of the SSF Guidelines also contemplate that States should identify, record, and respect traditional indigenous tenures in relation to fisheries ‘in ways that are consistent with international human rights law’.241 In this regard, the SSF Guidelines generally require States to ensure that small-scale fishing communities, including indigenous commu­ nities, are not arbitrarily evicted from customary fishing grounds and that their tenure rights are not extinguished or infringed.242 The SSF Guidelines further impose specific obligations on States to take a number of positive measures to improve tenure arrangements. Such positive measures include, inter alia, (i) granting preferential access to fishing grounds and resources, including to ‘create and enforce exclusive zones’ for small-scale and indig­ enous fisheries; (ii) giving due consideration to small-scale and indigenous fisheries before agreements on resource access are entered into with third States or parties; (iii) conducting social, economic, and environmental impact assessment studies, and holding effective and meaningful consultation with communities prior to the implementation of large-scale development projects 237 FAO, Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (SSF Guidelines), (Rome 2015). The SSF Guidelines were endorsed by 147 FAO member States so far, but they are also applicable to non-FAO member States. 238 Ibid., [3.1(1)]. 239 The SSF Guidelines fail to clearly incorporate the principle of free, prior, and informed consent (FPIC) as recognized in the UNDRIP. Instead, they use rather loose terms, such as ‘active, free, effective, meaningful, and informed participation’ (ibid., [6]). 240 Ibid., [3.1(2), 3.1(3) & 3.1(6)].

241 Ibid., [5.4].

242 Ibid., [5.9].

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that might impact the fishing communities; and (iv) involving small-scale and indigenous fishing communities in the design, planning, and implementation of management measures (including protected areas) affecting their liveli­ hood options.243 All of these measures resonate well with the rights of indig­ enous peoples recognized under international human rights law.244 Thus, the SSF Guidelines significantly reaffirm the essential human rights norms and call on States to adopt a human rights-based approach to managing small­ scale fisheries, including indigenous fisheries.245 Although, in principle, voluntary and non-binding, the FAO Code of Conduct for Responsible Fisheries and SSF Guidelines represent a global consensus on a wide range of fisheries management issues.246 As such, they guide States in the formulation and implementation of appropriate manage­ ment and conservation measures. These instruments also reinforce the goals and purposes of the existing law of the sea treaties (e.g., the LOSC and the UNFSA) – guiding the further evolution of the relevant fisheries provisions. These instruments also require States to evolutively interpret relevant fish­ eries provisions in a manner consistent with their obligations under inter­ national human rights law pertaining to indigenous peoples.247 This human rights law orientation clearly demonstrates that the law of the sea rules on the conservation and management of MLRs and the protection of human rights of indigenous communities relating to MLRs interact in a mutually supportive manner. 4.4 Traditional fishing rights of indigenous peoples of neighboring States The other specific area of interaction between the rights of indigenous peo­ ples and the law of the sea relates to the recognition of TFRs within the different maritime zones of neighboring States. The LOSC expressly recog­ nizes the TFRs of nationals of one State within the archipelagic waters of a 243 Ibid., [5.7, 5.10 & 5.15].

244 See Chapter 4 of this book.

245 For a detailed discussion, see R Willmann et al., ‘A Human Rights-Based Approach to

Securing Small-Scale Fisheries: A  Quest for Development as Freedom’ in S Jentoft et al. (eds), The Small-Scale Fisheries Guidelines: Global Implementation (Springer 2017) 15; R Willmann et al., ‘A Human Rights-Based Approach in Small-Scale Fisheries: Evolution and Challenges in Implementation’ in S Jentoft et al. (eds), The Small-Scale Fisheries Guidelines: Global Implementation (Springer 2017) 763. 246 S Jentoft et al., ‘Implementing the Voluntary Guidelines for Securing Small-Scale Fisher­ ies’ in S Jentoft et al. (eds), The Small-Scale Fisheries Guidelines: Global Implementation (Springer 2017) 3, 7; FAO, The Code of Conduct for Responsible Fisheries and Indigenous Peoples: An Operational Guide (n 227), 1; and W Edeson, ‘Closing the Gap: The Role of “Soft” International Instruments to Control Fishing’ (1999) 20 Australian Yearbook of International Law 83. 247 See generally FAO Policy on Indigenous and Tribal Peoples (Rome 2010).

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neighboring archipelagic State.248 On the other hand, there is no explicit provi­ sion dealing with TFRs within the territorial sea and the EEZ. However, the LOSC provides that the sovereignty of coastal States within the territorial sea is subject not only to the terms of the Convention but also to ‘other rules of international law’.249 As discussed above, international tribunals have explored the scope of the reference to ‘other rules of international law’ and concluded that it encompasses ‘general rules of international law’.250 This understanding has implications for the interaction between the rights of indigenous peoples and the LOSC since general international law embraces customary interna­ tional law relating to human rights as well as the principle of vested rights.251 On the other hand, legal opinions are divided with respect to the existence of TFRs within the EEZ. Since the issue of the relationship between the LOSC and TFRs of indigenous peoples requires a detailed assessment and analysis, it is discussed separately in Chapter 8. 5. Conclusion Although the law of the sea and human rights law pertaining to the rights of indigenous peoples have different objectives and focus, neither can be regarded as a self-contained regime. The rights of indigenous peoples are inevitably exercised in marine spaces that fall within the ambit of the law of the sea. Although the main instruments of the law of the sea do not impose express obligations on coastal States to protect the rights and interests of indigenous peoples,252 there is nothing in these instruments that precludes the application of human rights law pertaining to indigenous peoples. Thus, as part of the broader international legal system, the law of the sea and human rights law pertaining to indigenous peoples interact with one another. In this respect, the various cross-referencing, applicable law, and relationship clauses of the LOSC and Article 31(3)(c) of the VCLT serve as important legal bases to connect the two bodies of law. These mechanisms of interaction allow the relevant provisions of the law of the sea instruments to be interpreted and applied in light of the evolving norms and standards of human rights law. The jurisprudence of relevant international tribunals discussed in this chapter affirms this general interplay. The discussions of the specific areas of interaction also demonstrate that, for the most part, the relationship between the law of the sea and human rights law pertaining to indigenous peoples is complementary. Thus, a coastal State is able to observe its obligations both under the law of the sea and under 248 249 250 251 252

LOSC (n 2), Arts 47(6) & 51(1).

Ibid., Art 2(3).

Chagos Arbitration (n 51), [516]; and the South China Sea Arbitration (n 55), [808].

South China Sea Arbitration, ibid., [808].

Article 24 of the UNFSA is the exception in this respect.

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international human rights law. This non-conflictual relationship particularly exists with respect to non-exclusive indigenous rights, including resource harvesting rights. There are two main reasons for this smooth interaction. First, although the LOSC principally allocates powers to a coastal State with respect to natural resources of the different maritime zones, the Convention does not prescribe how the coastal State should exercise its exclusive author­ ity in relation to those resources or how it should allocate them. This decision is the sole authority of the coastal State but must be exercised in light of its human rights obligations. Second, while the main instruments of the law of the sea impose obligations on coastal States to conserve and manage MLRs and ensure optimum utilization of the surplus resources of the EEZ, they also grant coastal States broad discretion in taking such conservation measures and in deciding access for foreign nationals. As Goodman rightly observes, the ‘open-textured and broadly drawn’ nature of the fisheries provisions of the LOSC offers significant scope for coastal State interpretation and inno­ vation.253 Accordingly, a coastal State can exercise its broad authority over MLRs in a manner that also fulfills its obligations towards indigenous peo­ ples under international human rights law. The FAO Code of Conduct for Responsible Fisheries and the SSF Guidelines make this interaction clearer by explicitly requiring coastal States to adopt a human rights-based approach in the context of conserving and managing indigenous fisheries. The interaction between exclusive indigenous rights and the right of navi­ gation depends on the specific maritime zone. Since a coastal State does not have an obligation to recognize the right to navigation of other States in its internal waters, the LOSC places no limitation on its competence to rec­ ognize exclusive area-based rights to indigenous peoples. However, there is a possibility for conflict between exclusive indigenous rights and the right/ freedom of navigation within the territorial sea, archipelagic waters, and the EEZ. On the one hand, indigenous peoples perceive navigation as a threat to their traditional way of life and the harvesting activities of MLRs.254 On the other hand, flag States may consider the recognition of exclusive indigenous rights as an unjustifiable interference with their right/freedom of navigation. In this respect, the coastal State has sufficient powers under the LOSC to manage the exercise of innocent passage – for example, through the adoption of sea lanes and traffic separation schemes or other routing measures – to protect exclusive indigenous rights. The coastal/archipelagic State’s powers to regulate the exercise of navigational rights in international straits, archi­ pelagic sea lanes passage, and the EEZ is however very limited. Therefore, if indigenous communities claim to exclusively control access to certain marine 253 C Goodman, ‘Striking the Right Balance? Applying the Jurisprudence of International Tribunals to Coastal State Innovations in International Fisheries Governance’ (2017) 84 Marine Policy 293, 298. 254 See Chapter 1 of this book.

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areas within these maritime zones, a coastal State will be precluded from rec­ ognizing such control to the extent that it conflicts with navigational rights under the LOSC. In some exceptional circumstances, however, a coastal State may have an opportunity, with the approval of the IMO, to manage the exer­ cise of navigational rights in a manner that protects the rights of indigenous communities through PSSA designations and the adoption of APMs – pursu­ ant to Articles 211(1) and 211(6) of the LOSC and other IMO instruments. The PSSA applications discussed in this chapter, in particular the joint Aus­ tralia-Papua New Guinea PSSA proposal with respect to the Torres Strait, demonstrate the nexus between the protection of complex and vulnerable ecosystems and the protection of indigenous interests. If such opportunities exist, it is possible to argue that a coastal State has a duty to explore such opportunities where existing navigational practices pose a significant risk to the rights of indigenous communities. In short, the relative silence of the main instruments of the law of the sea with respect to the rights of indigenous peoples relating to marine space and its resources does not suggest that the law of the sea regime restricts the abil­ ity of a coastal State to protect indigenous rights. Instead, the coastal State should exercise its broad rights and discretionary powers under the law of the sea to draw from the appropriate human rights norms and standards so as to recognize and protect the rights of indigenous peoples relating to tradi­ tionally used marine space and MLRs.

Chapter 7

The rights of indigenous peoples to harvest marine mammals

1. Introduction Indigenous peoples around the globe have a special attachment to marine mammals – including whales, seals, and polar bears.1 They have traditionally harvested marine mammals to fulfill their subsistence needs, to make indig­ enous products such as hunting equipment and products used for cultural and spiritual ceremonies and rituals, and to transfer traditional knowledge, including traditional hunting methods, from generation to generation.2 Many indigenous peoples also engage in trade, both domestic and international, in various products of marine mammals to support their economic subsistence. Thus, the harvesting of marine mammals serves as a basis not only for eco­ nomic self-reliance but also for maintaining the social and cultural identity of indigenous peoples.3 For these reasons, international human rights law recog­ nizes the rights of indigenous peoples to harvest marine mammals, inter alia, on the grounds of subsistence and cultural rights, and imposes a correspond­ ing obligation on States to take appropriate positive measures to recognize and respect the rights of indigenous peoples to harvest marine mammals.4 On the other hand, the law of the sea and international environmental law have a special interest in conserving marine mammals as they are more vul­ nerable to overharvesting and extinction than other marine living resources (MLRs) for two main reasons. First, due to their migratory nature,5 marine 1 The indigenous peoples of the Arctic region, among many others, are the dominant harvesters of whales, seals, and polar bears. See MMR Freeman et al., Inuit, Whaling, and Sustainability (Altamira Press 1998); M Nuttall et al., ‘Hunting, Herding, Fishing, and Gathering: Indig­ enous Peoples and Renewable Resource Use in the Arctic’ in C Symon, L Arris, and B Heal (eds), Arctic Climate Impact Assessment (CUP 2005) 649. 2 DR Klein et al., ‘Management and Conservation of Wildlife in a Changing Arctic Environment’ in C Symon, L Arris, and B Heal (eds), Arctic Climate Impact Assessment (CUP 2005) 632. 3 See Chapter 1 for a more general discussion. 4 See Chapter 4 of this book for a detailed discussion. 5 This is not to suggest that all marine mammals are migratory species, but most of them, particularly cetaceans, are. See United Nations Convention on the Law of the Sea (LOSC), concluded at Montego Bay on 10 December  1982, 1833 UNTS 3 (entered into force 16 November 1994), Annex I to the LOSC).

DOI: 10.4324/9781003242772-10

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mammals are exposed to exploitation throughout their migration routes – both within maritime zones under different national jurisdictions and on the high seas.6 Second, their biological characteristics result in low reproduc­ tion cycles, which exacerbates the risk of rapid extinction.7 In other words, since marine mammals have long gestation periods, produce small numbers of offspring at a time, and take long inter-birth interval times, it takes a long time to restore populations if they are depleted.8 For these and other reasons, several international law instruments give particular focus to the protection of marine mammals. The United Nations Convention on the Law of the Sea (LOSC)9 contains specific provisions dealing with the rights and obligations of States on the conservation and management of marine mammals. Simi­ larly, some general wildlife conservation-oriented international treaties, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)10 and the Convention on Migratory Species of Wild Animals (CMS),11 include marine mammals within their broader scope of application. There are also international instruments dealing with the con­ servation and management of specific marine mammals or groups of marine mammals, such as agreements concerning the conservation of seals, the Inter­ national Convention for the Regulation of Whaling (ICRW),12 the Agree­ ment on Cooperation in Research, Conservation and Management of Marine Mammals in North Atlantic (NAMMCO Agreement),13 and the Agreement on the Conservation of Polar Bears (ACPB).14 All these instruments follow different approaches to the conservation and management of marine mam­ mals and impose different types and levels of corresponding obligations on State parties.

6 See N Matz, ‘Chaos or Coherence? – Implementing and Enforcing the Conservation of Migratory Species Through Various Legal Instruments’ (2005) 65 ZaöRV 197, 198 & 203. 7 P Pomeroy, ‘Reproductive Cycles of Marine Mammals’ (2011) 124 Animal Reproduction Science 184; AD Davidson et al., ‘Divers and Hotspots of Extinction Risk in Marine Mam­ mals’ (2012) 109(9) Proceedings of the National Academy of Science of the United States of America (PNAS) 3395. 8 P Pomeroy, ibid. 9 LOSC (n 5). 10 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), concluded at Washington on 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975), amended at Bonn on 22 June 1979 and at Gaborone on 30 April 1983. 11 Convention on the Conservation of Migratory Species of Wild Animals (CMS), concluded at Bonn on 23 June 1979, 1651 UNTS 333 (entered into force 1 November 1983). 12 International Convention for the Regulation of Whaling, concluded at Washington on 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948). 13 Agreement on Cooperation in Research, Conservation and Management of Marine Mam­ mals in the North Atlantic (NAMMCO Agreement), concluded at Nuuk on 9 April 1992, 1994 UNTS 4 (entered into force 8 July 1992). 14 Agreement on the Conservation of Polar Bears (ACPB), concluded at Oslo on 15 Novem­ ber 1973, 2898 UNTS 243 (entered into force 26 May 1976).

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Thus, in light of the previous, States have dual obligations – i.e., the obli­ gation to conserve marine mammals on the one hand and the obligation to recognize the harvesting rights of indigenous peoples on the other hand. This chapter examines the impacts of the regulatory approaches of the various international instruments dealing with the conservation and management of marine mammals on the inherent rights of indigenous peoples to harvest those resources. In other words, it explores whether and to what extent the obliga­ tions of coastal States to conserve and manage marine mammals (arising from various laws of the sea and environmental law-related instruments listed pre­ viously) limit their capacity to take measures to recognize the (human) rights of indigenous peoples to harvest traditionally used marine mammals. 2. What constitutes a marine mammal? The LOSC provisions dealing with marine mammals (Articles 64, 65, 120, and Annex I) and other instruments concerning the conservation of marine mammals do not define the term ‘marine mammal’. Birnie argues that the term ‘marine mammal’ is a general term which covers ‘aquatic air-breathing species equipped with mammalia for feeding their young and which are born in the sea and share the marine environment with vast numbers of other marine species’.15 Birnie further notes that: In scientific terms the group ‘marine mammals’ includes approximately 122 species from three taxonomic orders: cetaceans (whales, dolphins, and porpoises), sirenians (sea cows, manatees, and dugongs) and carni­ vores, of which only pinnipeds or seals, sea lions and fur seals, sea and marine otters and polar bears are marine. Not all of the last groups exclu­ sively inhabit marine waters though most members of each feed there and some also live in fresh waters.16 Thus, the scientific usage of the term ‘marine mammal’ is wide in scope. The term encompasses a large number of species, and it is unnecessary for a spe­ cies to exclusively inhabit salt waters for such a species to be considered a marine mammal. Bankes follows a similarly broad approach.17 Endorsing the 15 PW Birnie, ‘Marine Mammals: Exploiting the Ambiguities of Article 65 of the Convention on the Law of the Sea and Related Provisions: Practice under the International Convention for the Regulation of Whaling’ in D Freestone, R Barnes, and DM Ong (eds), The Law of the Sea: Progress and Prospects (OUP 2006) 264. See also J Harrison and E Morgera, ‘Article 65 LOSC: Marine Mammals’ in A Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Verlag CH Beck oHG Publishing 2017) 522–523. 16 PW Birnie, ibid., 264–265 (emphasis added). 17 N Bankes, ‘The Conservation and Utilization of Marine Mammals in the Arctic Region’ in EJ Molenaar, AGO Elferink, and DR Rothwell (eds), The Law of the Sea and the Polar Regions: Interactions Between Global and Regional Regimes (Martinus Nijhoff 2013) 293–321.

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previously mentioned views, this chapter also adopts a broad understanding of the term ‘marine mammal’ that includes, inter alia, whales, polar bears, seals, and dugongs. The main reason for this is not only that it aligns with scientific usage but also because most of these species have traditionally been harvested by many indigenous peoples around the globe. The following sec­ tion examines whether the provisions of the LOSC on the conservation and management of marine mammals limit the power of coastal States to take measures to recognize the rights of indigenous peoples to the harvesting of marine mammals. 3. The LOSC rules on the conservation of marine mammals The LOSC adopts both zonal and species-specific approaches for the con­ servation and management of MLRs. The LOSC does not provide specific rules for the conservation and management of MLRs within internal waters, archipelagic waters, and the territorial sea. In these maritime zones, coastal States have a right, as a manifestation of their sovereignty, to regulate all activities relating to the use of all types of MLRs subject to their general obli­ gation to protect and preserve the marine environment.18 Marine mammals are no exception. Accordingly, coastal States have the exclusive sovereign right to regulate the exploration, exploitation, conservation, and manage­ ment of marine mammals as they deem appropriate and consistent with their own national environmental and resource policies and other norms of inter­ national law.19 This means that coastal States are free to design their conser­ vation and management measures of marine mammals consistently with their obligations to indigenous peoples under international law. However, the LOSC makes specific provisions for the conservation and management of marine mammals within the exclusive economic zone (EEZ) and the high seas. The pertinent provisions in this regard are Articles 64, 65, and 120. The rules of Article 64 apply to marine mammals that are highly migratory, particularly those cetaceans listed under Annex I to the LOSC.20 Article 65 deals with the conservation and management of all types of marine mammals in the EEZ, providing that: Nothing in this part [Part V] restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit,

18 LOSC (n 5), Art 192. See also Chapters 5 and 6 for a detailed discussion of this point. 19 Ibid., Art 193. Customary norms of international environmental law or other treaties con­ cerning the conservation of marine mammals, be they general or species-specific, may place limitations on the sovereign rights of coastal States to regulate marine mammals (see Sec­ tions 4 and 5 of this chapter). 20 Annex I to the LOSC: Highly Migratory Species, list No 17 (cetaceans).

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limit or regulate the exploitation of marine mammals more strictly than provided for in this part. States shall cooperate with a view to the conser­ vation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conser­ vation, management and study.21 This provision consists of two main components. The first sentence of the provision expressly allows coastal States to prohibit, limit, or regulate the exploitation of marine mammals more strictly than the general conservation rules of the EEZ regime. This suggests that the coastal State is not obligated to set an allowable catch and to give access to other States to harvest the surplus of any allowable catch of marine mammals within its EEZ.22 Put simply, as a lex specialis, Article 65 modifies the conservation and manage­ ment regime established under Articles 62 and 64 (regarding optimum utili­ zation of highly migratory marine mammals) of the LOSC.23 In this regard, Burke notes that Article 65 allows ‘the coastal State [to] prohibit the taking of marine mammals even if its population is at maximum abundance and completely safe from any excessive exploitation’.24 The first sentence of Arti­ cle 65 further implies not only that the coastal State may prohibit access to foreign fishing vessels but also that it can limit or totally ban the harvesting of marine mammals by its own nationals. The second component of Article 65 deals with the obligation of coastal States to cooperate and to work through appropriate international organi­ zations for the conservation, management, and study of marine mammals (cooperation clause).25 While the general obligation of coastal States to coop­ erate (which may take the form of direct cooperation without the medium of international organizations) applies to the conservation of all types of marine mammals, the obligation to ‘work through appropriate international organi­ zations’ applies only to cetaceans. Yet, Article 65 provides neither criteria to measure whether an organization qualifies as an ‘appropriate international organization’ nor does it specify possible candidates through which a coastal State must work to comply with its obligation. McDorman argues that ‘[p] rovided that an international organization is engaged in constructive con­ servation, management, and study of cetaceans, that organization should be considered as potentially being an appropriate organization for the purpose

21 Ibid., Art 65 (emphasis added).

22 J Harrison and E Morgera, Article 65 LOSC (n 15), 523.

23 SN Nandan et al. (eds), United Nations Convention on the Law of the Sea, 1982: A Com­ mentary: Vol. 2: Articles 1 to 85, Annexes I and II, Final Act, Annext II (Martinus Nijhoff 1993) 664. 24 WT Burke, ‘The Law of the Sea Convention Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction’ (1984) 63 Oregon Law Review 71, 115. 25 LOSC (n 5), Art 65 (second sentence).

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of Article 65’.26 The UN Division for Ocean Affairs and the Law of the Sea (DOALOS) recognizes the International Whaling Commission (IWC), the UN Food and Agriculture Organization (FAO), and the UN Environmen­ tal Program (UNEP) as ‘appropriate international organizations’ within the meaning of Article 65.27 Several commentators have also recognized the North Atlantic Marine Mammal Commission (NAMMCO) as an appropri­ ate international organization under Article 65.28 Thus, given the presence of multiple appropriate international organizations, the coastal State has the freedom to choose through which international organization it seeks to coop­ erate for the conservation, management, and study of cetaceans. In sum, Article 65 permits coastal States or appropriate international organizations to adopt stricter conservation and management regimes for marine mammals than the general fisheries rules of the EEZ. The provision has a general application to all types of marine mammals, big and small, irre­ spective of whether they are highly migratory or not, and without distinction based on their conservation status. It contains no such qualifications to limit its scope of application to certain specific types of marine mammals. The specific reference to cetaceans in the second sentence of the provision empha­ sizes the special necessity ‘to work through’ international organizations with respect to cetaceans, but it does not limit the application of the balance of the provision to cetaceans. 3.1 The impact of Article 65 of the LOSC on the rights of indigenous peoples to harvest marine mammals Article 65 of the LOSC is silent regarding the issue of the rights of indigenous peoples to harvest traditionally used marine mammals. Therefore, the main issue that needs to be explored here is whether Article 65 limits the power of coastal States to take measures to recognize and respect the rights of indig­ enous peoples to harvest marine mammals. This issue can be examined in light of the two components of Article 65 discussed previously. First, as indi­ cated, the first sentence of Article 65 allows but does not oblige a coastal State to adopt strict conservation measures. Put differently, Article 65 does 26 TL McDorman, ‘Canada and Whaling: An Analysis of Article 65 of the Law of the Sea Con­ vention’ (1998) 29(2) Ocean Development and International Law 179, 185. 27 DOALOS, ‘ “Competent or Relevant International Organizations” Under the United Nations Convention on the Law of the Sea’ (1996) 31 Law of the Sea Bulletin 79, 82. 28 AH Hoel, ‘Regionalization of International Whale Management: The Case of the North Atlantic Marine Mammals Commission’ (1993) 46(2) Arctic 116, 122; DD Caron, ‘The International Whaling Commission and the North Atlantic Marine Mammals Commission: The Institutional Risks of Coercion in Consensual Structures’ (1995) 89(1) American Jour­ nal of International Law 154. Member States of the NAMMCO have also maintained the position that, by working through NAMMCCO, they fulfill their obligations under Article 65 of the LOSC.

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not impose a mandatory obligation on coastal States to limit or prohibit the taking of marine mammals. Rather, it affords the coastal State full discretion to decide on the type and extent of regulatory measures of marine mam­ mals within its EEZ.29 Thus, a coastal State may exercise (at least under the LOSC) its discretion to recognize the rights of indigenous peoples to harvest marine mammals subject to its general obligation to ‘ensure’ that marine mammals are ‘not endangered’ by over-exploitation or that their habitat is not depleted, provided under Articles 61(2) and 194(5) of the LOSC.30 This bottom line – i.e., if indigenous harvesting is likely to endanger the very sur­ vival of marine mammals or deplete their habitat – is the only constraint on a coastal State’s discretion to allow indigenous peoples to harvest marine mammals within its EEZ. On the other hand, a coastal State’s wide discretion under Article 65 does not afford it cover to take unjustified restrictive measures against indigenous peoples. The Virginia Commentary suggests that the ‘effect of article 65 is to free the coastal State of challenge if it should decide to forbid exploitation of any marine mammal within its exclusive economic zone’.31 However, this proposition should be read in light of international human rights law, which recognizes the rights of indigenous peoples to harvest marine mammals for subsistence and cultural reasons and, to that effect, may limit the powers of a coastal State under the LOSC.32 This understanding is clear from the terms of Article 65 itself, which provides that ‘[n]othing in this part [Part V] restricts the rights of the coastal State . . . to prohibit, limit, or regulate marine mammals more strictly than provided for in this part’.33 This shows that while the rules of Part V of the LOSC do not restrict a costal State’s rights to take strict conservation measures, other rules of international law, most importantly international human rights law, may have this effect.34 Second, a coastal State’s obligation to ‘work through appropriate interna­ tional organizations’ for the conservation and management of cetaceans – the 29 Burke notes that ‘decisions about [the conservation and management of marine mammals] are solely for the coastal State, without regard to . . . any other provision [of the LOSC] on fisheries’ (see WT Burke, The Law of the Sea Convention Provisions on Conditions of Access to Fisheries (n 24), 115). 30 See Chapter 6 for a detailed discussion of this point. 31 SN Nandan et al., United Nations Convention on the Law of the Sea (n 23), 663 (emphasis added). 32 See H Woker, The Rights of Indigenous Peoples to Harvest Marine Mammals in the Arctic: Perspectives from International Human Rights Law and the Law of the Sea, Master Thesis in the Law of the Sea (UiT-The Arctic University of Norway 2015) 22 & more generally. 33 LOSC (n 5), Art 65 (emphasis added). 34 For a detailed discussion on the interaction between the rights of indigenous peoples and the law of the sea, see Chapter 6 of this book; and EL Enyew and N Bankes, ‘Interaction Between the Law of the Sea and the Rights of Indigenous Peoples’ in N Matz-Luck, Ø Jensen, and E Johansen (eds), The Law of the Sea: Normative Context and Interactions with Other Legal Regimes (Routledge 2022) 151.

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second component of Article 65 of the LOSC – similarly does not preclude a coastal State from recognizing the harvesting of cetaceans by indigenous peo­ ples. To begin with, a coastal State can fulfill this obligation by participating in good faith in the work of such organizations without being a member of that organization, as the provision does not make membership the only and mandatory way to cooperate.35 Harrison and Morgera argue that consulta­ tion with and involvement in scientific bodies of appropriate international organizations or participation in the work of the organization as observ­ ers could fulfill a coastal State’s obligation to work through international organizations under Article 65.36 A  coastal State may choose not to be a member of the relevant organization and may determine conservation and management measures for cetaceans – including appropriate harvest quotas for its indigenous peoples – without seeking approval from any international organization. This is exactly the approach followed by Canada in the case of whaling. Canada withdrew from the ICRW in 1982 (when the IWC declared a whaling moratorium) but has continued to cooperate with the IWC – par­ ticipating as an observer and by involving its scientists in the scientific bodies of the IWC – thereby meeting its obligation under Article 65 of the LOSC.37 This approach enables Canada, as a non-IWC member State, to establish whaling quotas for its aboriginal peoples without following the IWC’s abo­ riginal subsistence whaling procedure. Canada first permitted the harvest by Inuit in 1991 in the Western Arctic of one bowhead whale (part of the Bering­ Chukchi-Beaufort Sea stock), as well as two bowhead whales in 1996 from the Davis Strait (part of the Hudson Bay stock).38 Since then, co-management regimes under various land claims agreements have established quotas for Inuit harvest on a regular basis. The IWC frequently condemns Canada’s practice, but many member States have not supported such condemnation, holding that Canada is a non-IWC member and is not bound by the rules of the IWC.39 Several other non-IWC member States, which are parties to the 35 TL McDorman, Canada and Whaling (n 26), 186 & 188.

36 J Harrison and E Morgera, Article 65 LOSC (n 22), 523.

37 TL McDorman, ibid., 186. Withdrawing from the IWC in 2019 in response to the rejection

of its proposal for reform of the IWC (particularly focusing on amendment of the Schedule dealing with commercial whaling) at the 2018 meeting, Japan also takes the position that it will continue to attend the meetings of the IWC as an observer to fulfill its obligation ‘to work through appropriate international organizations’ provided under Art 65 of the LOSC (avail­ able at: www.japantimes.co.jp/news/2018/12/26/national/japan-formally-announces-iwcwithdrawal-resume-commercial-whaling/#.XWj_uSMzaM9 (accessed September 2023)). 38 See NA Rand, ‘Reforming the International Whaling Commission: Indigenous Peoples, the Canadian Problem and the Road Ahead’ (2017) 19 International Community Law Review 324. 39 See IWC, Chairman’s Report of the 48th Annual Meeting (Aberdeen, 24–28 June  1996), Appendix 12, IWC Resolution 1996–9: Resolution on Canadian Whaling. The IWC adopted similar resolutions in 1998 and 2000 (see IWC Resolution 1998–13: Resolution on Cana­ dian Membership to the IWC; and IWC Resolution 2000–2: Resolution on Whaling of Highly Endangered Bowhead Whales in the Eastern Canadian Arctic). For a detailed discus­ sion, see NA Rand, ibid.

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LOSC, have also countenanced indigenous whaling – including Equatorial Guinea, Indonesia, and the Philippines.40 A coastal State may also be able to choose the ‘appropriate’ international organization through which it wants to cooperate, as discussed previously. This may allow a coastal State to adhere to an organization whose regulatory approach is respectful of indigenous harvesting rights. For example, the IWC and NAMMCO follow different policies in recognizing the rights of indige­ nous peoples to harvest whales. While the former prohibits whaling subject to an aboriginal subsistence exception (which follows stringent procedures), the latter adopts a general sustainable harvest policy that includes an indigenous harvest.41 Thus, Article 65 allows a coastal State to act in the best interests of its indigenous peoples while cooperating with an international organization engaged in the conservation and management of marine mammals. In sum, a coastal State can use its broad discretion to conserve and manage marine mammals under Article 65 to recognize the rights of indigenous peo­ ples to harvest marine mammals unless such discretion is restricted by other international agreements to which it is a party (discussed in the following sec­ tions). Hence, Article 65, interpreted in light of international human rights law, neither limits the capacity of a coastal State to recognize the rights of indigenous peoples to harvest traditionally used marine mammals nor does it justify a State taking unduly restrictive measures against indigenous peoples. 4. General conservation-focused international instruments Certain general global wildlife conservation-oriented international conven­ tions, such as CITES and CMS, include marine mammals within their scope of application. This section explores the conservation approaches taken by these two conventions and explores whether and to what extent they accom­ modate the rights of indigenous peoples to harvest marine mammals. 4.1 Regulation of trade in products of marine mammals for conservation purposes and indigenous rights: the rules of CITES Trade encourages the illegal take of threatened species.42 Indeed, interna­ tional trade is considered the second most crucial cause for the decline of 40 See M Fitzmaurice, ‘Indigenous Peoples in Marine Areas: Whaling and Sealing’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 69, 85; and RR Reeves, ‘The Origins and Character of “Aboriginal Subsistence” Whaling: A Global Review’ (2002) 32(2) Mammal Review 71, 86–89. 41 See Section 5 of this chapter for a detailed discussion on the regulatory approaches of the IWC and NAMMCO. 42 The food, fashion, and medical/pharmaceutical industries are all highly dependent on animal and plant products. This, in turn, triggers the illegal taking of such species. See C Fuchs,

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species after habitat loss.43 The CITES44 was adopted to regulate interna­ tional trade45 in specimens46 of endangered species.47 The Convention pri­ marily aims to ensure that international trade in specimens of wild animals and plants does not lead to their overexploitation or threaten their survival.48 It aims to achieve this objective through import and export regulations (i.e., by the issuing of permits and certificates for the export, import, and re-export of specimens of endangered animals and plants). CITES classifies species of animals and plants into three appendices accord­ ing to the degree of protection they require. Appendix I contains ‘all species threatened with extinction which are or may be affected by trade’.49 Guada­ lupe fur seal, all species of Mediterranean monk seals, bowhead whale, right whale, Antarctic minke whale, sei whale, bryde’s whale, blue whale, omura’s whale, fin whale, humpback whale, common minke whale except the popula­ tion of West Greenland, grey whale, pygmy right whale, sperm whale, beaked whales, bottle-nosed whales, and dugongs are some of the marine mammals covered under Appendix I.50 Trade in specimens of these species is subject

‘Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) – Conservation Efforts Undermine the Legality Principle’ (2008) 9(11) German Law Journal 1565, 1568. 43 Ibid., 1568. 44 CITES establishes the following bodies: the Conference of the Parties (Art XI) and the Sec­ retariat (Art XII). The Conference of the Parties (CoP) of CITES also establishes different committees, including the Standing Committee, the Animals Committee and Plants Com­ mittee. See CITES Resolution Conf 18.2, Establishment of Committees, as amended at the 12th, 13th, 14th, 16th, and 17th meetings of the Conference of the Parties. In addition, CITES requires State parties to establish one or more national Scientific and Management Authorities, competent to provide scientific advice and grant permits or certificates respec­ tively (CITES (n 10), Art IX). 45 CITES broadly defines ‘trade’ to include the ‘export, re-export, import, and introduction from the sea’ of specimens of any species covered by CITES (ibid., Art I(c)). The term ‘intro­ duction from the sea’ is, in turn, defined as the ‘transportation into a State of specimens of any species which were taken in the marine environment not under the jurisdiction of any State’ (ibid., Art I(e)). This means that the transportation of specimens of marine species taken from the marine environment outside a coastal State’s national jurisdiction into that State is regarded as trade, according to CITES. 46 The term ‘specimen’ is defined in the Convention to include ‘any animal or plant, whether alive or dead’, or ‘any recognizable part or derivative thereof’ (ibid., Art I(b)). This means that trade in any raw material, semi-processed or fully processed products of any species covered by the Convention is subject to regulation. 47 CITES covers endangered species of both terrestrial and marine animals and plants regard­ less of whether they are migratory or not. 48 Ibid., preamble, recital 4. Unlike other conservation-oriented treaties which focus on habitat conservation, CITES addresses the other main factor for the decline of species: illegal trade. 49 Ibid., Art II(1). 50 CITES, Appendices I, II and III of the Convention on International Trade in Endangered Spe­ cies of Wild Fauna and Flora, valid from 23 February 2023 (Appendices of CITES 20123, 12, 13, 14 & 22).

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to strict regulation and is only permitted in exceptional circumstances.51 Appendix II includes ‘all species although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival’.52 Southern elephant seal, all species of cetaceans (other than those listed in Appendix I), all species of southern fur seals (other than Gua­ dalupe fur seals listed in Appendix I), and polar bears, amongst others, are some of the marine mammals listed under Appendix II.53 Trade in these spe­ cies of marine mammals should be controlled in order not to facilitate their overexploitation in the near future. Appendix III contains all species in which any State party regulates trade within its jurisdiction and has asked other State parties to cooperate in controlling trade in such species.54 For example, Canada lists walrus under Appendix III.55 The Conference of the Parties (CoP) of CITES has the mandate to determine the up-listing, down-listing, or removal of a particular species from any of the appendices (i.e., to amend the appendices) based on the proposals or recommendations of the Animal or Plants Committee and the proposals of State parties.56 The CITES establishes different rules for regulating trade in specimens of species listed under each of the Appendices. Pursuant to Article III, trade in Appendix I species requires the prior grant and presentation of both an export and an import permit, which can be issued upon the fulfillment of a number of stringent conditions.57 An export permit can only be granted when the scientific authority of the State of export has advised that the ‘export will not be detrimental to the survival of that species’;58 and, additionally, when the management authority of the same State is satisfied that the specimen was not obtained in contravention of its laws for the protection of fauna and flora, and that an import permit issued by the State of import has been delivered.59 The State of import may issue an import permit only when its scientific authority has advised that ‘the import will be for purposes which 51 52 53 54 55 56

CITES (n 10), Art II(1).

Ibid., Art II(2(a)).

Appendices of CITES 2023 (n 50), 12–13.

CITES (n 10), Art II(3).

Appendices of CITES 2023 (n 50), 11.

Amendment of appendices of CITES requires a two-thirds majority of State parties present

and voting. Arts XI(3)(b) & (c) & XV of CITES provides the general procedures for amend­ ment of the appendices. The CoP of CITES also provides a list of criteria that must be met for up-listing and down-listing of species. See CITES, Resolution Conf 9.24 (Rev CoP17): ‘Criteria for Amendment of Appendices I and II’, available at: www.cites.org/sites/default/ files/document/E-Res-09-24-R17.pdf (accessed September 2023). The CITES does not allow a simultaneous listing of the same species in more than one appendix. 57 CITES (n 10), Art III(2) & (3).

58 Ibid., Art III(2)(a) (emphasis added).

59 Ibid., Art III(2)(b  & d). If the specimen to be exported is a living specimen, the manage­ ment authority of the State of export is additionally required to be satisfied that the ‘living

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are not detrimental to the survival of the species involved’ and when its man­ agement authority is satisfied that ‘the specimen is not to be used primarily for commercial purposes’.60 Thus, trade in specimens of Appendix I species is subject to strict regulation both by scientific and management authorities of the exporting and importing States. Trade in specimens of Appendix II species requires an export permit but does not require an import permit.61 The granting of an export permit for these species requires the fulfillment of the same conditions applicable to Appendix I species (discussed previously), except that the conditions related to the issuance of an import permit by the State of import are absent here.62 The State of import only needs to verify the presence of a valid export per­ mit without ascertaining other requirements – as is necessary in the case of Appendix I  species. Similarly, trade in specimens of Appendix III species only requires an export permit, but with limited and more lenient conditions attached to it than export permits for Appendices I  and II.63 The import­ ing State requires only a presentation of a certificate of origin, and where the import is from a State that has included that species in Appendix III, an export permit.64 In all three appendices, State parties are obliged to take appropriate measures to penalize trade in, or possession of, specimens of marine mammals in violation of the conditions and procedures discussed previously.65 While CITES provides certain exemptions from the aforemen­ tioned strict import-export regulatory requirements,66 these exemptions do not include the trade in products of marine mammals obtained through tra­ ditional indigenous harvesting practices. specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment’ (Art III(2(c))). 60 Ibid., Art III(3) (a & c) (emphasis added). If the specimen to be imported is a living specimen, the scientific authority of the State of import is additionally required to be satisfied that the proposed recipient of the living specimen is suitably equipped to house and care for it (Art III(3)(b)). 61 Ibid., Art IV. 62 Ibid., Art IV(2). 63 The granting of an export permit for species of Appendix III requires the management authority of the State, which has included the species in Appendix III, to be satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora, and that any living specimen will be so prepared and shipped as to minimize risks of injury, damage to health, or cruel treatment. See CITES (n 10), Art V(2). 64 Ibid., Art V(3). 65 Ibid., Art VIII(1). Article VIII of CITES provides other measures that the State parties can take in the event of illegal conduct of trade in specimens of species covered by CITES, includ­ ing the confiscation or return to the State of export of such specimens. 66 These exemptions include, inter alia, where the specimens are used for personal or household effects; if the specimens are used for non-commercial loan, donation or exchange between scientists or scientific institutions; and if the movement of specimens is for the purpose of travelling exhibitions. See ibid., Art VII(3, 6 & 7).

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Therefore, the important issue for the present purpose is whether and to what extent the regulatory approaches of CITES may restrict the power of State parties to allow their indigenous peoples to harvest and trade in marine mammal products. This issue can be seen from two angles, first, in terms of the scope of CITES itself. CITES regulates international trade in specimens of listed marine mammals through strict import and export control measures. Those persons directly affected by the prescriptions of CITES are export­ ers and importers of marine mammal products.67 CITES is not concerned with ‘what happens within the boundaries of its member States’.68 Thus, the harvesting of marine mammals for domestic uses is not the subject matter of the Convention. This means that the Convention does not prohibit State parties from allowing their indigenous peoples to harvest marine mammals for subsistence, cultural, and customary uses or from taking part in domestic (intra-State) trade. The second angle involves the nature of the obligations owed by State parties with respect to international trade in species of the three appendi­ ces. Conducting international trade in products of marine mammals listed under Appendix I is more difficult since both export and import permits are required. The exporting State cannot issue an export permit – allowing its indigenous peoples to export marine mammal products – unless an import permit issued by the State of import is delivered.69 This means that Appen­ dix I species are subject to double ‘non-detriment finding’ – by both scien­ tific authorities of the States of export and import, which may differ in their findings as they may use different methodologies.70 CITES also prohibits the importing State from issuing an import permit if the import is ‘primarily for commercial purpose’.71 The determination of this condition lies solely with the State of import. The State of import also has a right to adopt other stricter domestic measures or conditions – including a total prohibition of import – regarding the trade in products of marine mammals listed under Appendix I.72 Thus, CITES restricts the capacity of a State party to allow its indigenous peoples to trade in products of a marine mammal listed under Appendix I unless it has made a reservation with regard to that species (dis­ cussed in what follows). 67 C Fuchs, Convention on International Trade in Endangered Species (n 42), 1582. 68 E Franckx, ‘The Protection of Biodiversity and Fisheries Management: Issues Raised by the Relationship Between CITES and LOSC’ in D Freestone, R Barnes, and D Ong (eds), The Law of the Sea: Progress and Prospects (OUP 2006) 210, 214. 69 CITES (n 10), Art III(2) & (3). 70 See CITES, Resolution Conf 16.7 (Rev CoP17): Non-detriment Findings, as amended at the 17th meeting of the Conference of Parties, [1(a)(vi)]. 71 CITES (n 10), Art III(3)(c). It is worth recalling that Article I of CITES broadly defines ‘trade’ to include the import and export of items for non-commercial purposes. 72 Ibid., Art XIV(1)(a).

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The position is different with respect to the trade in products of marine mammals listed under Appendix II and III since the issuance of an export permit does not require the presentation of an import permit. The export­ ing State can issue the required export permit to an exporter if it ascertains that the products of marine mammals are obtained legally73 and that the trade is not detrimental to the species concerned.74 The requirement of a ‘non-detriment finding’ is the crucial element here. Trade is considered non­ detrimental to the survival of a species ‘when the products intended for export have originated from a sustainable harvest’.75 While the determination of ‘non-detriment’ is primarily the authority of individual State parties,76 CITES bodies also play a significant role. For example, the CoP of CITES adopts a long list of ‘concepts and non-binding guiding principles’ that national sci­ entific authorities are recommended to follow in assessing whether trade in a particular species would be detrimental to the survival of that species.77 One 73 Ibid., Arts IV(2)(b)  & V(2)(a). Marine mammal products are obtained legally if they are the result of harvests conducted in observance of relevant domestic laws or pursuant to the exemptions recognized under the various international law instruments. If indigenous harvesting of marine mammals is allowed under domestic law, trade in products of such harvesting practices is incidental to the former. 74 Ibid., Art IV(2)(a). 75 Department of Fisheries and Oceans Canada (DFO), Evaluation of Narwhal with Respect to Making a CITES Non-detriment Finding, Canadian Science Advisory Secretariat Science Response 2010/011 (2010) 2, available at: https://waves-vagues.dfo-mpo.gc.ca/Library/ 342512.pdf (accessed September 2023). See also CL Krieps, ‘Sustainable Use of Endangered Species Under CITES: Is It a Sustainable Alternative?’ (1996) 17(1) University of Pennsylva­ nia Journal of International Economic Law 461. 76 For example, in 2009 Canada found that the export of legally harvested polar bears from Canadian waters was non-detrimental except for polar bears of the Baffin Bay subpopulation – the latter was considered unsustainable, and no export permits were issued for polar bears harvested in the Baffin Bay management unit. See CITES Scientific Authority, Polar Bear Non-Detriment Finding for Canada (December 2009), available at: https://assembly.nu.ca/ library/Edocs/2009/001150-e.pdf (accessed September  2023). The 2018 updated informa­ tion on Canadian non-detriment findings for polar bears shows that the export of legally harvested polar bears, including the Baffin Bay subpopulation, are non-detrimental. See Polar Bear: Non-detriment Finding (updated March  2018), available at: www.canada.ca/ en/environment-climate-change/services/convention-international-trade-endangered-species/ non-detriment-findings/polar-bear.html (accessed September  2023). For a detailed discus­ sion of a non-detriment assessment of narwhal in Canada, see M Fitzmaurice, ‘So Much Law So Little Protection!: A Case Study of the Protection of the Narwhal’ (2009) 1 Yearbook of Polar Law 21, 36. 77 See CITES, Resolution Conf 16.7 (Rev CoP17) (n 70), [1(a)]. It is worth noting here that, at its 18th meeting (CoP18, Geneva, 2019), the CoP adopted Decisions 18.132 to 18.134 on Non-detriment findings, requiring the Secretariat, in consultation with the Animals and Plants Committees and Parties, to inventory and review the materials and guidance for the making of non-detriment findings (NDFs) that are currently available, and identify any apparent gaps and needs for improved or additional guidance on making NDFs. In response to such Decision, the Secretariat published an inventory and review of apparent gaps and needs for updated or additional guidance on making NDFs. See Report of the Secretariat,

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of these principles requires that national scientific authorities use ‘relevant knowledge and expertise of local and indigenous communities’ as a source of information when making a non-detriment finding.78 In addition, the CoP of CITES has introduced a process known as Review of Significant Trade for Appendix II species, which are subject to a high level of trade.79 This process allows the Animals and Plants Committees – in cooperation with the Secretariat and experts and in consultation with range States – to review the biological, trade, and other relevant information on affected species, to identify problems relating to the implementation of a non­ detriment finding (NDF), and to suggest appropriate solutions.80 Thus, the objective of the Review of Significant Trade process is ‘to ensure that trade in Appendix II species is being conducted sustainably and in accordance with Article IV of the Convention’.81 As such, this process does not impede the discretion of State parties to allow persons to trade in products of Appendix II marine mammals harvested by indigenous peoples insofar as that harvest is sustainable and conducted in compliance with Article IV of CITES and pertinent recommendations of the CoP. The relationship clause of CITES also provides the State parties with fur­ ther flexibility, stipulating that: The provisions of the present Convention shall in no way affect . . . the obligations of parties deriving from any treaty, convention, or interna­ tional agreement relating to other aspects of trade, taking, possession or transport of specimens which is in force or subsequently may enter into force for any Party.82 This provision allows State parties to discharge their obligations to regulate trade consistent with their obligations under other international

Joint sessions of the 31st meeting of the Animals Committee and the 25th meeting of the Plants Committee (Geneva, 17 July 2020). 78 Ibid., [1(a)(x)(D)]. 79 See CITES, Resolution Conf 12.8 (Rev CoP18): Review of Significant Trade in Specimens of Appendix II Species, as amended at the 13th, 17th and 18th meetings of the Conference of the Parties. At CoP19 in 2022, the CITES Secretariat launched an online tool known as the Review of Significant Trade Management System, which tracks the progress of country/ species combinations selected for review. This new Management System will be essential for the effective implementation of CITES and give full transparency of the process, which will help all stakeholders to keep track of ongoing cases. 80 Ibid., [1]. After the conclusions of the review, the Animals or Plants Committee either con­ firms that the State party properly implements Article IV or adopts different actions, includ­ ing setting annual export quotas for, or suspension of trade in, products of the affected species, [1(e & k)]. 81 Ibid., preamble, recital 9. 82 CITES (n 10), Art XIV(2).

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treaties.83 This means that State parties – in compliance with their obligations under international human rights law – have the discretion to allow their indigenous peoples to trade in products of marine mammals listed under Appendix II and III of CITES, provided that they are able to make a no detri­ ment finding. Moreover, CITES allows a State party to reserve the right to conduct trade in specific species included in any of the three appendices either at the time of depositing its instrument of ratification, acceptance, approval, accession,84 or when a species is listed (including up-listing or down-listing).85 Upon res­ ervation, the State party will be ‘treated as a State not a party to .  .  . the Convention with respect to trade in the species concerned’ until it withdraws its reservation.86 This ‘opt out’ option gives a State party the opportunity to enter a reservation (provided that it does so at the appropriate time) to trade in products of certain species of marine mammals traditionally harvested by their indigenous peoples. In conclusion, CITES seeks to conserve listed species of marine mammals by removing the economic incentive for illegally taking such mammals. How­ ever, CITES does not totally prohibit trade in products of marine mammals listed in all its appendices but rather strives to regulate trade in species that are vulnerable to extinction. As Fuchs puts it, ‘the Convention does not one­ sidedly favor an unlimited conservation approach nor does it neglect trade interests outright’.87 Rather, it seeks to strike a balance between the two inter­ ests, allowing ‘ “non-detrimental” commercial use of .  .  . species’.88 This is particularly true with respect to products of marine mammals listed under Appendices II and III, as a State party has the discretion to allow a sustainable level of export without requiring a non-detriment finding of the species by the State of import. A State party can also make a reservation against the listing of particular species in all of the appendices. Thus, although CITES fails to expressly recognize indigenous-trade exemption, it provides a State party with options to allow indigenous peoples to trade in products of marine mammals.

83 E Frackx, The Protection of Biodiversity and Fisheries Management (n 68), 223. 84 CITES (n 10), Art XXIII. The CITES prohibits general reservation. Rather, a State party is allowed to enter a specific reservation with regard to any species included in Appendix I, II, or III; or any parts or derivatives specified in relation to a species included in Appendix III (CITES, Art XXIII (2)). 85 Ibid., Arts XV(3) & XVI(2). In this respect, a reserving State party must communicate its res­ ervation to the depository government within 90 days after amendment of the Appendices. 86 Ibid., Arts XV(3), XVI(2) & XXIII. It is worth mentioning that a transfer of a species from one Appendix to another (up and down listing) renders invalid any reservation that was in effect in relation to the species; thus, any State party that wishes to maintain the reservation must enter a new reservation. See CITES Resolution Conf 4.25 (Rev CoP19), Reservations, as amended at the 14th, 18th and 19th meetings of the CoP. 87 C Fuchs, Convention on International Trade in Endangered Species (n 42), 1567. 88 CL Krieps, Sustainable Use of Endangered Species under CITES (n 75), 499.

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4.2 Conservation of migratory species of marine mammals and rights of indigenous peoples: the rules of the CMS The CMS, also known as the Bonn Convention,89 was adopted in 1979 with the objective to effectively conserve and manage migratory species90 of wild animals, including marine mammals.91 The Convention based itself on the premise that unilateral measures by individual range States92 are insufficient and ineffective at conserving migratory animals – conservation of such ani­ mals requires cooperation and concerted action amongst range States.93 The CMS functions through a double appendix system. It lists migratory species of wild animals in two appendices depending on their conservation status94 (degree of endangerment) and imposes various levels of conserva­ tion obligations on State parties. Appendix I lists migratory species which are considered endangered.95 The Conference of the Parties (CoP) of the CMS has interpreted the term ‘endangered’ as referring to those animals ‘facing a very high risk of extinction in the wild [along its range] in the near future’.96 The Mediterranean monk seal, bowhead whale, North Atlantic and North 89 The CMS establishes the following institutions: the Conference of the Parties (CoP), the Scientific Council, and the Secretariat (CMS (n 11), Arts VII, VIII & IX). As of June 2023, the CMS has 133 parties – 132 States plus the EU. 90 The CMS defines ‘migratory species’ as ‘the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant propor­ tion of whose members cyclically and predictably cross one or more national jurisdictional boundaries’ (ibid., Art I(1(a))). The term ‘predictably’ implies that ‘the phenomenon [of migration] can be anticipated to recur in a given set of circumstances, though not necessarily regularly in time’ (see CMS, The Conference of the Parties to the Convention on the Conser­ vation of Migratory Species of Wild Animals (CMS, CoP 11), UNEP/CMS/Resolution 11.33, 11th meeting (Quito, 4–9 November 2014), [2 (ii)]). The predictability of migration routes in turn assists in predicting and identifying range States. 91 The CMS applies to all terrestrial and marine animals that are regarded as migratory as per the definition provided under Article I of the CMS. With respect to marine mammals, the scope of the CMS is broader than Article 64 of the LOSC, which covers only highly migra­ tory species of cetaceans listed under Annex I to the LOSC but is narrower than Article 65 of the LOSC, which deals with all types of marine mammals irrespective of whether they are migratory or not. 92 The CMS defines the term ‘range’ as ‘all areas of land or water that a migratory species inhabits, stays in temporarily, crosses or overflies at any time on its normal migration route’ (CMS (n 11), Art I(1(f))). Thus, a ‘range State’ in relation to a particular migratory species refers to ‘any State that exercises jurisdiction over any part of the range of that migratory species, or a State, flag vessels of which are engaged outside national jurisdictional limits in taking that migratory species’ (ibid., Art I(1(h))). In short, these are States through whose waters migratory species pass. 93 Ibid., preamble, recital 6. See also N Matz, Chaos or Coherence (n 6), 198.

94 The CMS defines ‘conservation status’ as the ‘sum of the influences acting on the migratory

species that may affect its long-term distribution and abundance’ (ibid., Art I(1)(b)). 95 Ibid., Art III (1) & (2). 96 CMS, CoP 11 (n 90), [1]. This definition clarifies the definition of ‘endangered’ provided under Article I(1(e)) of the CMS.

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Pacific right whale, Southern right whale, blue whale, sei whale, fin whale, humpback whale, sperm whale, and beaked whale are some of the marine mammals included under Appendix I.97 On the other hand, Appendix II lists migratory species which have an unfavorable conservation status and which require international agreements for their conservation and man­ agement, as well as those which have a conservation status which would significantly benefit from the international cooperation that could be achieved by an international agreement.98 Thus, species listed in Appendix II are not currently under threat of extinc­ tion but may be under such threat in the long-term due to their conservation status being unfavorable. This means that the species are unable to maintain themselves on a long-term basis as a viable component of their ecosystem, that the range of the migratory species is currently being reduced or is likely to be reduced on a long-term basis, or that there is no sufficient habitat to maintain the population of the migratory species on a long-term basis.99 Sev­ eral marine mammals, such as polar bears, dugongs (sea cows), harbor seals, grey seals, Mediterranean monk seals, and different whale species – including fin whale, sei whale, bryde’s whale, antarctic minke whale, omura’s whale, pygmy right whale, beluga whale, and narwhal – are listed under Appendix II.100 Unlike CITES, the CMS allows migratory species to be listed on both appendices for extra-protection in the event of uncertainty concerning their conservation status.101 For example, the Mediterranean monk seal, sei whale, and fin whale are currently listed in both Appendices I and II. However, the listing of species is not static. The CoP has the mandate to add to the list and to up-list and down-list species between the appendices (or remove it alto­ gether from the protection of the CMS) depending on the available scientific evidence concerning the conservation status of a particular species.102 97 CMS, Appendices I and II of the Convention on the Conservation of Migratory Species of Wild Animals (Appendices of the CMS 2018), as amended by the Conference of Parties in 1985, 1988, 1991, 1994, 1997, 1999, 2002, 2005, 2008, 2011, 2014, 2017 and 2020 (effective from 22 May 2020) 1–2. 98 CMS (n 11), Art IV(1). 99 Ibid., Art I(1)(c) & (d). 100 Appendices of CMS 2020 (n 97), 6–8. 101 CMS (n 11), Art IV(2). 102 Ibid., Arts III(3) & XI. Particularly, the down-listing of a species from Appendix I requires clear scientific evidence, which shows that the species is no longer endangered, or is not likely to become endangered again because of its removal from Appendix I. Hence, in cases of uncertainty regarding the conservation status of a species, the State parties shall act in the best interests of the conservation of the species concerned when amending the appendices (see CMS, CoP 11 (n 90), [3]). Amendment of appendices of CITES requires a two-thirds majority of State parties present and voting (CMS (n 11), Art XI (4)). In 2020, the CoP adopted guidelines for the amendment of appendices, see CMS, Guidelines for

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The type and extent of obligations imposed on range States varies with respect to species listed under Appendix I and II. The CMS imposes strict con­ servation obligations on range States with respect to migratory species listed under Appendix I. Article III(4) requires range States to protect those species by conserving and restoring their habitat; by preventing, removing, or mitigating obstacles that seriously impede or prevent their migration; and by controlling other factors that may endanger the species, including controlling the introduc­ tion of, or eliminating already introduced, exotic species.103 Article III(5) of the CMS further imposes a specific obligation on range States to ‘prohibit the taking of animals belonging to such species’ (species listed in Appendix I).104 Nonetheless, the CMS does provide certain exceptions whereby range States can authorize the taking and harvesting of species listed under Appendix I. One such exception includes situations where ‘the taking is to accommodate the needs of traditional subsistence users of such species’.105 This provision does not make explicit reference to indigenous peoples, but the term ‘traditional subsist­ ence users’ must include, amongst others, coastal indigenous peoples who have traditionally used marine mammals for their subsistence. Although Appendix I includes species of marine mammals that are considered endangered, the CMS still allows but does not oblige, range States to recognize the rights of their indigenous peoples to harvest traditionally used marine mammals.106 The other important aspect of the CMS’ exemption is that it does not restrictively define ‘subsistence’, nor does it put any limitation on the types of methods and tools of harvesting. By leaving such specific regulatory details to the discretion of range-State parties, the CMS enables State parties to take appropriate positive measures to recognize and protect the rights of indigenous peoples consistently with their obligations under international human rights law.107 Regarding Appendix II species, the CMS only encourages range States to conclude global or regional agreements (including binding treaties and mem­ oranda of understanding) for the conservation of those species.108 As such,

preparing and assessing proposals for the amendment of CMS appendices, Adopted by the Conference of the Parties at its 13th Meeting (Gandhinagar, February 2020). 103 Ibid., Art III(4) (a-c). 104 Ibid., Art III(5). 105 Ibid., Art II(5)(c) (emphasis added). The other exceptions are: (i) taking for scientific pur­ poses; (ii) taking for the purpose of enhancing the propagation or survival of the affected species; or (iii) if extra-ordinary circumstances require the taking of the species (ibid., Art III(5)(a-d)). The CMS does not however clarify what constitutes an ‘extra-ordinary circum­ stance’ under the third exception. 106 This also implies that the up listing of marine mammals from Appendix II to Appendix I does not affect the traditional harvesting rights of indigenous peoples. 107 See Chapter 4 of this book for details. 108 CMS (n 11), Art IV(3) & (4). See also CMS Resolution, Implementation of Articles IV and V of the Convention, UNEP/CMS/Resolution 12.8, adopted by the Conference of the Par­ ties at its 12th Meeting (Manila, October 2017).

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the CMS does not impose obligations on range States to prohibit the taking of Appendix II marine mammals; rather, it serves as a framework convention from which other separate instruments evolve.109 This implies that the CMS does not limit the power of coastal States to recognize the rights of indig­ enous peoples to harvest traditionally used marine mammals listed under Appendix II. Of course, subsequent specific agreements concluded pursuant to Article IV of the CMS may impose more stringent conservation measures for species listed under Appendix II – in which case range States that endorse the agreement will be required to follow the terms of that specific agree­ ment. Of the many agreements concluded under the CMS, the Memorandum of Understanding on the Conservation and Management of Dugongs110 is particularly relevant here as dugongs play an important role in the culture of many coastal indigenous peoples in the Asia-Pacific region, including the aborigines of Australia.111 While the Memorandum of Understanding encour­ ages cooperation among range-State parties in order to restore or maintain the conservation status of dugongs and their habitat, it allows the State par­ ties to take into account ‘the subsistence and customary use of dugongs’ by indigenous peoples when taking conservation measures.112 The CMS also provides two additional exceptions that apply to species listed in both appendices. First, like the CITES, the CMS allows a State party to make a reservation with regard to the listing of any migratory species of marine mammal in any of the two appendices either at the time of deposit­ ing instruments of ratification, acceptance, approval, accession,113 or when a species is up or down listed.114 A reservation has the effect that a State party is treated as a non-member to the Convention with respect to the species for which the reservation is made.115 This ‘opt out’ provision gives a State party to the CMS the power to ensure that traditionally used species of marine 109 Several agreements for the conservation of Appendix II marine mammals have been con­ cluded pursuant to Article IV of the CMS. The list of binding agreements is available at: www.cms.int/en/cms-instruments/agreements; for the list of Memoranda of Understanding, see: www.cms.int/en/cms-instruments/mou (accessed September 2023). 110 Memorandum of Understanding on the Conservation and Management of Dugongs (Dugong Dugon) and their Habitats throughout their Range (MoU on Conservation of Dugongs), signed at Abu Dhabi on 31 October 2007 (entered into force immediately after signature). As of June 2023, 27 States have signed the MoU. 111 See E Leong, ‘Indigenous Australians and Dugongs in the Southern Great Barrier Reef: Legal Remedies’ (1998) 14 Queensland University of Technology Law Journal 108. 112 MoU on Conservation of Dugongs (n 110), [1]. 113 CMS (n 11), Art XIV(2). 114 Ibid., Art XI(6). Like the CITES, CMS allows only reservations to the listing of specific species (species-specific reservations), and general reservation to any of the appendices is prohibited (ibid., Art XIV(1)). The timeframe for entering reservations is within 90 days after the adoption of amendment of Appendices. 115 Ibid., Art XIV(2). For a current list of species reservations, see CMS, Parties’ Species Res­ ervations and Territories to which the Convention does not Apply (Updated 5 May 2019).

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mammals continue to be available for harvest by their indigenous peoples. For example, Denmark currently enters reservations to certain species of whales listed under either Appendix I  or II, including the antarctic minke whale, bryde’s whale, fin whale, pygmy right whale, and sperm whale.116 Second, a State party to the CMS can exclude the application of the Con­ vention as a whole over certain territories under its jurisdiction (territorial exclusion).117 For example, Denmark has excluded the application of the CMS to Greenland. In conclusion, the regulatory approach of the CMS does not impede the capacity of a State party to recognize the rights of its indigenous peoples to harvest traditionally used marine mammals. The CMS provides sufficient space and flexibility for a State party to balance its obligation to conserve endangered or likely to be endangered migratory marine mammals on the one hand with its human rights obligations to recognize the subsistence and cultural rights of indigenous peoples on the other. 5. Agreements on the conservation of specific marine mammals and indigenous harvesting rights This section explores certain agreements adopted to regulate the conser­ vation and management of specific types of marine mammals and to what extent these agreements recognize the rights of indigenous peoples. The term ‘agreement’ is used in its broad sense. It covers not only binding international multilateral conventions and bilateral treaties but also other non-binding instruments, such as memoranda of understanding and other arrangements. The agreements canvassed include, inter alia, treaties on the conservation of Bering fur seals, the ICRW, the NAMMCO Agreement, and the ACPB. 5.1 Historic agreements on the conservation of Bering fur seals Fur seals were subjected to overexploitation throughout the 19th cen­ tury. The northern fur seal population was particularly overharvested by the American, British/Canadian, Japanese, and Russian vessels for their skins.118 This triggered States to conclude multilateral and bilateral agree­ ments to protect such species of seals from extinction. Pioneering in this regard was the regulation adopted by the Arbitral Tribunal of the 1893 Bering Fur Seal Arbitration as part of its award. The regulation is effectively

116 CMS, Parties’ Species Reservations, ibid.

117 Ibid.

118 See N Sellheim, ‘Scopes and Limits of “Arcticness”: Arctic Livelihoods, Marine Mammals

and the Law’ in I Kelman (ed.), Arcticness: Power and Voice from the North (UCL Press 2017) 102, 103.

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a bilateral treaty between the United States (US) and the United Kingdom (UK).119 This regulation imposed concurrent obligations on the US and the UK to protect and preserve fur seals in the Bering Sea up to 60 nautical miles (nm) beyond their respective national jurisdictions (which, at that time, was 3 nm). Accordingly, the regulation required the two States to forbid their respective nationals ‘to kill, capture or pursue [fur seals] at any time and in any manner whatever’ within 60 nm ‘around the Pribilov Islands, inclusive of the territorial sea’.120 The regulation imposed similar restrictions on fur seal hunting in waters outside the Pribilov Islands during a specific hunt­ ing season (from 1 May to 31 July inclusive).121 The regulation, however, recognized the subsistence needs of indigenous communities of both States engaged in seal hunting. Accordingly, the regulation exempted indigenous communities dwelling in coastal areas of the Bering Sea from the ban and allowed them to conduct fur seal hunting using traditional methods and for non-commercial purposes.122 This regulation represents the first inter­ national law instrument that sets the conditions for exempting indigenous peoples from hunting bans or other forms of restrictions applicable to the commercial hunting of seals.123 Most of the provisions of the regulation adopted by the Bering Fur Seal Arbitral Tribunal were incorporated into subsequent treaties dealing with the conservation of Bering fur seals. The 1911 Convention between the US, the UK, Russia, and Japan (known as the Bering Fur Seal Treaty) – concluded to manage the commercial harvest of northern fur seals and sea otters for their skins and furs – was the first such treaty.124 This treaty prohibited the nationals of State parties from engaging in pelagic sealing (i.e., the killing, capturing, or pursuing of fur seals beyond the 3 nm territorial sea limits) and imposed obligations on State parties to take appropriate measures – includ­ ing to enact and enforce legislations – to prevent illegal hunting.125 119 Award of the Tribunal of Arbitration constituted under the Treaty concluded at Washing­ ton, the 29th of February 1982, between the United States of America and her Majesty the Queen of the United Kingdom of Great Britain and Northern Ireland relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v United Kingdom) (the Bering Fur Seal Arbitration), Paris, 15 August 1893. For a detailed discussion of the Arbitral award, see R Duane, ‘The Decision of the Behring Sea Arbitrators’ (1893) American Law Register and Review 901. 120 Bering Fur Seal Arbitration, ibid., Art 1. 121 Ibid., Art 2. During the specific hunting period and in the waters in which fur seal hunting is allowed, the hunters must have a special fishing license and were only allowed to use sail­ ing vessels to carry on their hunting operations (Arts 3 & 4). 122 Ibid., Art 8.

123 N Sellheim, Scopes and Limits of Arcticness (n 118), 103.

124 Convention between the United States and Other Powers Providing for the Preservation

and Protection of Fur Seals (the Bering Fur Seal Treaty), concluded at Washington on 7 July 1911, 37 Stat 1542 (entered into force 15 December 1911). 125 Ibid., Arts I, V, VI & IX.

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Nonetheless, following the precedent set by the Bering Fur Seal Arbitral Award regulation, the Bering Fur Seal Treaty provided an exemption for indigenous peoples – such as the Indians, Aleut, Ainus, and other coastal dwelling indigenous peoples – to hunt seals for subsistence purposes subject to two key conditions. First, the sealing had to be conducted ‘in canoes not transported by or used in connection with other vessels, and propelled entirely by oars, paddles, or sails, and manned by not more than five persons each, in the way hitherto practiced and without the use of firearms’.126 Second, the indigenous peoples must ‘not [be] in the employment of other persons or under contract to deliver the skins to any person’.127 Similar exemptions were continued in the 1957 Interim Convention on Conservation of North Pacific Fur Seal,128 which succeeded the 1911 Bering Fur Seal Treaty, and the 1976 Convention on the Conservation of North Pacific Fur Seals,129 which amended the Interim Convention.130 While all of these agreements permitted hunting only for subsistence purposes, none of them defined what constitutes ‘subsistence’, and none of them allowed (or required) indigenous peoples to adapt their traditional seal hunting methods to modern technologies. Even though these agreements are no longer in force,131 they offer a his­ torical example of how States recognized the rights of indigenous peoples to hunt seals not only within waters under national jurisdiction but also on the high seas (now forming part of the EEZ regime). They also shaped the form and content of subsequent treaties on the conservation of other types of marine mammals, such as the conventions regulating whaling, which are discussed in the following sections. 5.2 The international convention for the regulation of whaling The advent of factory ships and other technological innovations in the 19th century made it possible to conduct extensive whaling operations in areas far

126 Ibid., Art IV.

127 Ibid.

128 Interim Convention between the United States of America, Canada, Japan, and the Union

of Soviet Socialist Republics on Conservation of North Pacific Fur Seals (Interim Conven­ tion on Conservation of North Pacific Fur Seal), signed at Washington on 9 February 1957, 106 UNTS 4549 (entered into force 14 October 1957). 129 Convention on Conservation of North Pacific Fur Seals, signed at Washington on 7 May 1976, 314 UNTS 105 (entered into force 12 October 1976). 130 Interim Convention on Conservation of North Pacific Fur Seal (n 128), Art VII; Convention on Conservation of North Pacific Fur Seals, ibid., Arts V(2)(d) & VII. 131 Currently, indigenous seal hunting is regulated primarily by national legislation. However, international organizations such as NAMMCO also provide scientific advice to its mem­ ber States. See also generally N Sellheim, The Seal Hunt: Cultures, Economies and Legal Regimes (Brill 2018); and M Fitzmaurice, Indigenous Peoples in Marine Areas (n 40).

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from land stations, which, in turn, led to the over-exploitation and extinc­ tion of many species of whales.132 This extensive and unregulated industrial hunting triggered certain States to adopt the ICRW133 in 1946, which has governed global whale harvesting since then.134 The ICRW includes a Sched­ ule ‘which forms an integral part thereof’135 and which sets specific regula­ tions for whaling. The Convention aims both ‘to ensure proper and effective conservation and development of whale stocks’.136 The ICRW established the IWC as its regulatory organization – respon­ sible for promoting the goals of the Convention.137 The IWC has a number of mandates, one of which includes making recommendations138 to any or all State parties on any matters that relate to whales or whaling in line with the objectives of the Convention.139 The other principal function of the IWC relates to the amendment of the Schedule.140 The Commission may, by a three-fourths majority vote, adopt new regulations from time to time with respect to the conservation and utilization of whale resources by, inter alia, determining protected and unprotected species;141 open and closed seasons;142 open and closed waters, including the designation of sanctuary areas;143 size limit for each species;144 time, methods, and intensity of whaling – including

132 KS Davis, ‘International Management of Cetaceans Under the New Law of the Sea Conven­ tion’ (1985) 3 Boston University International Law Journal 477. 133 The application of the ICRW is not territorially limited. It applies to all whaling conducted both ‘under the jurisdiction of the Contracting Governments and to all waters in which whaling is prosecuted’ (ICRW (n 12), Art I(2)). 134 Two instruments dealing with whaling were adopted prior to the ICRW: Convention for the Regulation of Whaling, concluded at Geneva on 24 September 1931, 155 LNTS 349 (entered into force 16 June  1935), and the International Agreement for the Regulation of Whaling, concluded at London on 8 June  1937, 190 LNTS 80 (entered into force 7 May  1938). Nonetheless, these instruments were ineffective at solving the problem of overexploitation. 135 ICRW (n 12), Art 1. Any reference to the ICRW ‘shall be understood as including the . . . Schedule either in its present terms or as amended in accordance with the provisions of Article V’ (Art I(1)). 136 Ibid., preamble, recital 2 & 6.

137 Ibid., Art III. The IWC currently has 88 member States.

138 The recommendations of the IWC take the form of resolutions. Even though these resolu­ tions are not formally binding, ‘when they are adopted by consensus or by a unanimous vote, they may be relevant for the interpretation of the Convention or its Schedule’ (see Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (Judgement) [2014] ICJ Rep 226, [46]). 139 ICRW (n 12), Art VI. The other general functions of the IWC are listed under Article IV(1).

140 Ibid., Art V.

141 Ibid., Art V(1)(a).

142 Ibid., Art V(1)(b).

143 Ibid., Art V(1)(c). The IWC established the Indian Ocean Whale Sanctuary and the South­ ern Ocean Whale Sanctuary in 1979 and 1994, respectively. 144 Ibid., Art V(1)(d).

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the maximum catch of whales to be taken in any one season;145 and types and specifications of gear, apparatus and appliances which may be used.146 Such regulatory measures must be based on ‘scientific findings’147 and must be such as are ‘necessary to carry out the objectives and purposes of the Convention and to provide for the conservation, development, and optimum utilization of the whale resources’.148 The IWC initially followed a policy of sustainable harvest for commer­ cial whaling.149 However, due to the continued depletion of stocks, the IWC amended the Schedule of the ICRW in 1982 and imposed a complete ban on commercial whaling (a general whaling moratorium), which took effect from the 1985/86 whaling season and continues to apply today.150 Nonetheless, the ICRW recognizes two exceptions: whaling, other than for commercial purposes, may still be conducted for scientific research151 and aboriginal sub­ sistence whaling.152 The following subsections thoroughly discuss the abo­ riginal subsistence whaling exception. 5.2.1 Aboriginal subsistence whaling: meaning and evolution Aboriginal subsistence whaling (ASW) has been treated differently from com­ mercial whaling ever since the first attempts to regulate whaling. Recogniz­ ing the importance of whale products to the nutritional and cultural life of coastal indigenous peoples, the earlier 1931 Convention for the Regulation of Whaling exempted ASW. Article 3 of the 1931 Convention provided that: The present Convention does not apply to aborigines dwelling on the coasts of the territories of the High Contracting Parties provided that – [t]hey use canoes, pirogues or other exclusively native craft propelled by oars or sails; [t]hey do not carry firearms; [t]hey are not in the employ­ ment of persons other than aborigines; and [t]hey are not under contract to deliver the products of their whaling to any third person.153 These conditions were taken directly from treaties regulating the Bering fur seal (discussed previously). The ICRW has continued the precedent set in 145 146 147 148 149 150 151 152 153

Ibid., Art V(1)(e). Ibid., Art V(1)(f). Ibid., Art V(2)(b). Ibid., Art V(2)(a). See PW Birnie, The International Regulation of Whaling: From Conservation of Whaling to Conservation of Whales and Regulation of Whale Watching (Oceana Publications 1985). IWC, Chairman’s Report of the 34th Annual Meeting (Brighton, 19–24 July 1982) 20–21. The moratorium is included in the Schedule of the ICRW, paragraph 10(e). ICRW (n 12), Art VIII. A discussion of scientific whaling is beyond the scope of this chapter. Ibid., Schedule, [13]. The 1931 Convention for the Regulation of Whaling (n 134), Art 3.

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the 1931 Convention by incorporating ASW into its Schedule.154 Paragraph 2 of the original Schedule of the ICRW recognizes ASW by providing that ‘[i]t is forbidden to take or kill gray whales or right whales, except when the meat and products of such whales are to be used exclusively for local consumption by the aborigines’.155 Thus, both the 1931 Convention and the original Schedule of the ICRW allowed the harvest of whales – including gray whales and right whales, which were prohibited for commercial whaling – by indigenous peoples subject to restrictions on the types of weapons to be used. However, neither convention defined the terms ‘aboriginal subsistence whaling’ and ‘local consumption’. Additionally, neither convention imposed limits on the number of catches, restrictions on geographical boundaries, or on seasons – they simply provided an open exemption to ASW. However, the 1970s ‘bowhead whale problem’ in Alaska – the increas­ ing number of bowhead whale catches by Alaskan Eskimos without catch restrictions as well as the large number of whales struck and lost156 – trig­ gered the IWC, at its 1977 Annual Meeting to remove the ASW exception for right whales including bowhead whales.157 This ban was met with strong criticism and resistance from Alaskan Eskimos for failing to consider the nutritional and cultural aspects of whale hunting.158 As a result, the IWC reversed its decision at a special meeting in 1977 and established a modest aboriginal catch quota for bowhead whales (12 landing and 18 strike limits) for the 1978 hunting season.159 Thereafter, the IWC continued the practice of setting aboriginal catch quotas annually based on the documented needs of the aborigines concerned.160 154 The text of the 1937 International Agreement for the Regulation of Whaling did not con­ tain a similar exemption to aboriginal whaling, but it clearly stated that the treaty was limited to ‘factory ships and whale catchers and land stations’. Thus, subsistence whaling by aborigines was not within its scope of Agreement. See R Gambell, ‘International Man­ agement of Whales and Whaling: An Historical Review of the Regulation of Commercial and Aboriginal Subsistence Whaling’ (1993) 46(2) Arctic 97, 101–102. 155 IWC, The 1st Annual Report of the International Whaling Commission (IWC 1950), Appendix 1: Schedule of the ICRW, [2] (emphasis added). 156 R Gambell, ‘The Bowhead Whale Problem and the International Whaling Commission’, in Report of the International Whaling Commission Special Issue 4 (IWC 1982) 1. 157 IWC, Chairman’s Report of the 29th Meeting of the Commission (Canberra, 20–24 June 1977) 22. It is worth noting here that the IWC meetings are no longer annual but, rather, biennial starting from 2012. 158 The very first Inuit Circumpolar Conference in 1977 adopted a resolution calling on the IWC in general and the governments of Canada and US in particular to defend Inuit rights to hunt whales in the Arctic. See Resolution 77–15 of Inuit Circumpolar Conference, Call­ ing upon the International Whaling Commission to defend Inuit rights to hunt the whale (Barrow, June 1977), available at: http://ebenhopson.com/586-2/ (accessed June 2023). 159 IWC, Chairman’s Report of the 1977 Special Meeting of the Commission (Tokyo, 6–7 December 1977), Appendix 1: Amendments to the Schedule, [11]. 160 See IWC, Chairman’s Report of the 31st Annual Meeting (London, 9–13 July  1979), Appendix-4: Resolution on Bering Sea Bowhead Whale; and IWC, Chairman’s Report of

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The ‘bowhead whale problem’ had a greater effect than setting the prec­ edent for determining annual aboriginal catch quotas. It also set in motion the development of a specific management regime for ASW in general. At its 30th Annual Meeting in June 1978, the IWC established a Working Group of the Technical Committee mandated ‘to examine the entire aboriginal whaling problem and develop proposals for a [management] regime for the aboriginal bowhead hunt in Alaska and, if appropriate, a regime or regimes for other aboriginal hunts’.161 Subsequently, the IWC established another ad hoc Technical Committee Working Group on Development of Management Principles and Guidelines for Subsistence Catches of Whales by Indigenous (Aboriginal) Peoples, which was mandated to develop appropriate manage­ ment principles for ASW, in particular for the setting of allowable catches.162 The ad hoc Working Group was composed of representatives of the Techni­ cal Committee, the Scientific Committee, and the indigenous peoples who take subsistence catches.163 This composition allows for participation by the indigenous peoples concerned in the design of principles and procedures con­ cerning whale management that affect their interests. The ad hoc Working Group developed several important concepts, includ­ ing the adoption of a set of definitions. It defined ‘aboriginal subsistence whaling’ as: ‘whaling for purposes of local aboriginal consumption carried out by or on behalf of aboriginal, indigenous or native peoples who share strong community, familial, social and cultural ties related to a continuing traditional dependence on whaling and on the use of whales’.164 To qualify for ASW catches, an ASW State should clearly demonstrate these elements of the definition – i.e., the historic dependence as well as the continuing subsist­ ence and cultural significance of whaling and whale products for indigenous peoples concerned and their use solely for local consumption. The ad hoc Working Group also defined the term ‘local aboriginal consumption’ as ‘the traditional uses of whale products by local aboriginal, indigenous or native communities in meeting their nutritional, subsistence, and cultural require­ ments. The term includes trade in items which are by-products of subsistence catches’.165 Thus, ASW embraces the use of meat and other whale products for local or community-wide consumption, such as for food, shelter, clothing,

161 162 163 164

165

the 32nd Annual Meeting (Brighton, 21–26 July  1980), Appendix-3: Resolution on the Documentation of Aboriginal Need. IWC, Chairman’s Report of the 30th Annual Meeting of the Commission (London, June 1978) 26 (emphasis added). IWC, Chairman’s Report of the 32nd Annual Meeting (n 160), Appendix-2: Ad hoc Work­ ing Group on Subsistence Whaling. Ibid. GP Donovan, ‘The International Whaling Commission and Aboriginal/Subsistence Whal­ ing: April 1979 to July 1981’, in Report of the International Whaling Commission Special Issue 4 (IWC 1982) 83 (emphasis added). Ibid., 83 (emphasis added).

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tools, or as means of transportation – including trade in handicraft articles from whale products.166 The IWC accepted these definitions in its 1982 reso­ lution and has used them since as a working definition for ASW.167 Nonetheless, the meanings of the elements of the definition of ASW, in particular the scale of trade permitted under ASW have remained contro­ versial. In 2004, the Small Working Group of the IWC168 provided further clarification by endorsing that the term ‘subsistence use’ includes: The barter, trade or sharing of whale products in their harvested form with relatives of the participants in the harvest, with others in the local com­ munity or with persons in locations other than the local community with whom local residents share familial, social, cultural or economic ties. A generalized currency is involved in this barter and trade, but the predomi­ nant portion of the products from such whales are ordinarily directly con­ sumed or utilized in their harvested form within the local community.169 The Small Working Group also made clear that the phrase ‘ “when the meat and products of such whales are to be used exclusively for local consumption” means that some transaction[s] beyond the aboriginal whaling communities . . . are acceptable’.170 While the IWC prohibits the trade of whale products in international markets, it clearly recognizes trade with non-indigenous com­ munities in the local community and distribution of whale products among members of indigenous communities in other locations. Yet, the definitions still lack clarity regarding the extent of monetary transactions in the context of ASW. This is partly due to the absence of a definition of the term ‘commer­ cial’ in the IWC context and because the phrase ‘the predominant portion of the product’ in the definition of ‘subsistence use’ is not clarified. In its 63rd annual meeting in 2011, the IWC established an ad hoc Abo­ riginal Subsistence Whaling Working Group (ASWWG) with the respon­ sibility to identify and ‘attempt to answer previously unanswered ASW 166 RR Reeves, The Origins and Character of ‘Aboriginal Subsistence’ Whaling (n 40), 99. 167 IWC, Chairman’s Report of the 34th Annual Meeting (n 150), Appendix-3: Resolution Concerning Aboriginal Subsistence Whaling. 168 The Small Working Group (comprised of the Russian Federation, Australia, Denmark, the US, and the Secretariat) was established in 2004 with a mandate to review paragraph 13 of the Schedule of the ICRW in order to harmonize the approaches of all aboriginal whaling operations and to propose some amendments. The ASW part of the Schedule (paragraph 13) acquired its current form in 2004. See IWC, Chair’s Report of the 56th Annual Meeting (Italy, 19–22 July 2004) 15. 169 Ibid. (emphasis added). The origin of the definition of ‘subsistence use’ was the Cultural Anthropology Panel of the 1979 Panel Meeting of Experts. The Small Working Group rein­ troduced this definition in 2004, and the IWC has now formally accepted it. 170 Ibid. (emphasis added). The Commission formally adopted the report of the Small Working Group, including the aforementioned definitions, by consensus (at 17).

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issues’.171 The ASWWG identified the distinction between ‘local consump­ tion’ and ‘commercialism’ as one of the ‘unanswered ASW issues’.172 The ASWWG submitted a final report on these issues to the ASW Sub-committee in 2018,173 although it was unable to provide definitive guidance. It simply concluded that the ‘use of cash in ASW communities varies from region to region . . . reflect[ing] the modern world both with respect to costs associated with hunting equipment and whale product distribution methods’.174 It con­ cluded further that some sale of whale products ‘in order to help defray the costs of whaling’ falls within the scope of ‘local consumption’.175 In short, ASW has evolved over the years from an undefined open exemp­ tion to a separate management regime based on accepted definitions and operates on a needs-based quota system. The ASW quotas are also calculated based on specific management objectives and follow certain processes. The following section discusses the objectives of ASW and the procedures for the determination of catch quotas. 5.2.2 Objectives of ASW and processes for setting catch limits The IWC has adopted three broad objectives for the management of ASW, which distinguish it from commercial whaling.176 First, ‘to ensure that the risks of extinction to individual stocks are not seriously increased by subsist­ ence whaling’.177 Second, ‘to enable aboriginal peoples to harvest whales in perpetuity at levels appropriate to their cultural and nutritional requirements, subject to the other objectives’.178 Third, ‘to maintain the status of the whale stocks at or above the level giving the highest net recruitment and to ensure 171 See IWC, Chair’s Report of the 63rd Annual Meeting (Jersey, 11–14 July 2011) 17–18. 172 The Working Group has identified a list of ‘unresolved ASW issues’ including, inter alia, the debate on local consumption and commercialism, standardizing need statements, removing ASW catch limits from political discussion, changing the term ‘aboriginal’ in ASW, and obtaining adequate information for ASW catch limits. For a complete list of identified and unresolved ASW issues, see Report of the Aboriginal Subsistence Whaling Working Group (The 2012 Report of the ASWWG), IWC/64/ASW5 Rev1 (May 2012) 2. 173 See Report of the Meeting of the Aboriginal Subsistence Whaling Working Group (The 2018 Report of the ASWWG), IWC/67/ASW/Rep/01, Utgiakvik (Barrow), Alaska (10–13 April 2018). 174 Ibid., 5. 175 Ibid. See also Report of the IWC Expert Workshop on Aboriginal Subsistence Whaling (ASW), (Report of the 2015 Expert Workshop on ASW), IWC/66/ASW Rep01 (Greenland, 14–18 September 2015) 15–16 & 20. 176 It was the ad hoc Working Group on Development of Management Principles and Guide­ lines for Subsistence Catches of Whales by Indigenous (Aboriginal) Peoples that adopted these objectives. See GP Donovan, The International Whaling Commission and Aboriginal/ Subsistence Whaling (n 164), 83. 177 Ibid., 84.

178 Ibid. (emphasis added).

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that stocks below that level are moved towards it, so far as the environment permits’.179 These objectives are interconnected in the sense that the third objective serves as a means to ensure that indigenous peoples continue to har­ vest whales for the long-term (objective two), while regulating these practices so that they will not lead to extinction (objective one). These objectives were designed to make sure that indigenous whale hunting practices are sustain­ able as well as to enable the IWC to set long-term ASW catch quotas rather than following the previous practice of ad hoc consideration of annual catch limits.180 In its 1982 and 1994 resolutions, the IWC approved these objectives as standard objectives for the management of ASW.181 These objectives are now incorporated into paragraph 13(a) of the Schedule of the ICRW in the form of principles that guide the IWC to quantitatively determine catch limits while balancing aboriginal subsistence needs with the protection of whales.182 The determination of aboriginal catch quotas in each whaling season involves a two-step process. The first step involves activities external to the IWC – i.e., the preparation and submission of a ‘need statement’, also known as a ‘description of indigenous hunt’,183 to the IWC by the relevant ASW States. The 1979 resolution, which called on the US to prepare a need statement for the Alaskan Eskimos in connection with the bowhead hunt, provides guidance as to the content of a ‘need statement’.184 This includes information and documentation about the traditional attachment of the con­ cerned indigenous peoples to whaling (including the historical and current level of the hunt); the nutritional value of whale products (including their importance in traditional diet) and a description of the availability of alter­ native food sources which are of equivalent value (including any possible adverse effects of shifting to other non-traditional food sources); and the cultural significance of whale hunting.185 Due to animal welfare issues, the 179 Ibid. 180 Ibid. 181 See IWC, Chairman’s Report of the 34th Annual Meeting (n 150), Appendix-3: Resolution Concerning Aboriginal Subsistence Whaling; and IWC Resolution 1994–4: Resolution on a Review of Aboriginal Subsistence Management Procedures, [3]. This latter resolution reaffirmed the standard objectives of ASW by adding the following qualification: ‘Highest priority shall be accorded to the objective of ensuring that the risk of extinction to indi­ vidual stocks are not seriously increased by subsistence whaling’ [4]. 182 The 2018 Schedule of ICRW, as amended by the Commission at the 67th Meeting, Sep­ tember 2018, [13(a)]. See also Resolution 2014–1: Resolution on Aboriginal Subsistence Whaling, adopted at the 65th meeting, [d(iii)]. 183 The 2015 Expert Workshop on ASW has recommended the IWC replace the term ‘need statement’ with the term ‘description on the [indigenous] hunt relevant to catch/strike limit requests’ (see Report of the 2015 Expert Workshop on ASW (n 175), 22). 184 See IWC, Chairman’s Report of the 31st Annual Meeting (n 160), Appendix-4: Resolution on Bering Sea Bowhead Whales. 185 Ibid. See also IWC, Chairman’s Report of the 32nd Annual Meeting (n 162), Appendix-3: Resolution on the Documentation of Aboriginal Need.

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IWC has also required that the description of hunts include information on hunting methods.186 Thus, a ‘need statement’ should explain how the hunt meets the IWC’s definition of ASW, specify the required catch/strike limit, and provide appropriate documentation to justify the quota request. The practice of ASW States shows that their need statements, although following different formats, address all the previously-mentioned issues.187 In its 65th meeting, the IWC resolved to develop a standardized need statement presen­ tation form in order to create uniformity in submissions and to ease its review process.188 Accordingly, the ASWWG has prepared a web-based standard ‘format for Description of the Hunt’ and an ‘outline for ASW Catch/Strike Limit Request’ and recommends that both ASW States and the IWC follow such formats.189 Recognizing the different needs and local circumstances of indigenous hunting – and to ensure the flexibility that ASW States need in preparing the need statement – the ASWWG has prepared the formats/tem­ plates with broad headings rather than issuing a strictly prescriptive form.190 The IWC approved the recommended formats, and the four ASW States cur­ rently benefitting from the IWC’s ASW regime191 submitted their 2018 need statement/description of the hunt following the standard formats.192 The preparation of a ‘need statement’ necessarily requires ASW States to fully engage the concerned indigenous peoples in the documentation process in order to propose the appropriate catch limits sufficient to meet their needs and to achieve their full acceptance of the proposal. This undertaking is con­ sistent with the human rights of indigenous peoples to define their cultural needs and their right to consultation and participation in matters that affect them, as well as the corresponding obligations of States in that regard.193

186 See IWC, Chairman’s Report of the 37th Annual Meeting (Bournemouth, 15–19 July 1985), Appendix-3: Resolution on Humane Killing in Aboriginal Whaling; and IWC, Chairman’s Report of the 49th Annual Meeting (Monaco, 20–24 October 1997), Appendix-1: Resolu­ tion on Improving the Humaneness of Aboriginal Subsistence Whaling. 187 See, for example, AM Renker, Whale Hunting, and the Makah Tribe: A Need Statement, submitted by the US to the IWC, IWC/64/ASW4 (May 2002); Need Statement submitted by the Russian Federation: Needs of Indigenous People of Chukotka (Russian Federa­ tion) in Whaling Products and Possible Questions for the Nearest Futures, IWC/66/ASW03 (October 2016). 188 See IWC, Chair’s Report of the 65th Meeting (Slovenia, 15–18 September 2014), Resolu­ tion 2014–1: Resolution on Aboriginal Subsistence Whaling, [d(i)]. The 2015 Expert Work­ shop on ASW also recommended the preparation of a standard need statement form (see IWC, Report of the 2015 Expert Workshop on ASW (n 175), 12 & 17–18). 189 See The 2018 Report of the ASWWG (n 173), 13.

190 For the templates, see ibid., 13.

191 These States are the Russian Federation, the USA, Greenland/Denmark, and St Vincent and

the Grenadines. 192 See the 2018 ‘need statements’ submitted by the four ASW States at: https://iwc.int/ information-on-hunts (accessed September 2023). 193 See Chapters 3 and 4 of this book.

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Hence, this process allows ASW States sufficient flexibility to act in the best interests of indigenous peoples and to prepare the ‘need statement’ in a man­ ner that meets the rights of indigenous peoples recognized under interna­ tional human rights law. The second step involves internal processes of consideration of ‘need and sustainability’ by the IWC. Initially, both the Scientific Committee194 and the ASW Sub-Committee195 assess the need statements submitted by ASW States and provide their advice to the IWC Plenary regarding the sustainability of proposed hunts and safe catch limits. The IWC Plenary, after considering information from both the ‘need statement’ and the recommendations of the Scientific Committee and ASW Sub-Committee, decides – by consensus or by a three-fourths majority vote – the catch limits for each hunting season.196 The final decision, if the quota is approved, is then entered into the relevant paragraph 13(b) of the Schedule of the ICRW in the form of an amend­ ment. The IWC has currently (for the 2019–2025 whaling season) estab­ lished quotas for six specific whaling operations. These comprise bowhead whales from the Bering-Chukchi-Beaufort Sea stock (taken by indigenous peoples of Alaska and Chukotka), gray whales from the eastern stock in the North Pacific (taken by indigenous peoples of Chukotka and Makah), minke whales from the West and East Greenland stock (taken by Green­ landic Inuit), fin whales from the West Greenland stock (taken by Green­ landic Inuit), bowhead and humpback whales from the West Greenland feeding aggregation (taken by Greenlandic Inuit), and humpback whales from the western North Atlantic (taken by Bequians of St Vincent and the Grenadines).197 If the IWC rejects the proposed catch/strike request, the only remedy is to re-apply before the next meeting of the IWC; there is no alterna­ tive avenue for ASW States. In short, ASW now operates based on predetermined management objec­ tives and principles. The IWC has played a significant role in the develop­ ment of such management objectives and principles by frequently amending the Schedule of the ICRW – as the need arises – and by initiating and sponsor­ ing studies on the subject.

194 The Scientific Committee provides its recommendations to the Commission based on the initial assessment of its Working Group on the Development of an Aboriginal Subsistence Whaling Management Procedure (AWMP), which develops Strike Limit Algorithms (SLAs) for certain stocks of whales. The Scientific Committee’s recommendations relate only to the scientific aspects of ASW. 195 The IWC’s 1982 resolution concerning ASW established and stipulated the terms of refer­ ence of the ASW Sub-Committee. Accordingly, the ASW Sub-Committee is mandated to assess aboriginal subsistence, nutritional and cultural needs, and other non-scientific issues. 196 ICRW (n 12), Arts III(2) & V. In its determination, the IWC Plenary either approves the ASW State’s request (in full or upon modification) or entirely rejects the request. 197 See ICRW, The 2018 Schedule of ICRW (n 182), [13(b)].

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5.2.3 Limitations of the ASW regime The IWC’s ASW regime suffers from certain limitations. The first limita­ tion relates to the overall setup of ASW within the IWC framework. Since the ASW exception is recognized in the Schedule rather than the body of the ICRW itself, it can be revoked without following stringent amendment procedures applicable to the body of the convention.198 In other words, the recognition of ASW is fragile in the sense that it can be abolished at any time by a three-fourths majority vote of the members of the IWC.199 Indeed, some member States of the IWC have advocated for the removal of the ASW exception, calling the IWC to work ‘to reduce aboriginal dependence upon whales in a phased manner’ by establishing alternative socio-economic con­ ditions, such as whale watching and eco-tourism, for those whale dependent indigenous peoples.200 At the 59th annual meeting in 2007, Italy, on behalf of the EU member States, entertained the view that whales should not be killed even for aboriginal use on the grounds of their perceived ‘cuteness’ and intelligence, stating that ‘whales are charismatic megafauna and that their value as individuals cannot be diminished. It was uneasy about treating them merely as quantities of meat rather than as evolved beings’.201 At the 67th IWC meeting in 2018, India and Gabon similarly reiterated the view that member States should ‘work with their indigenous communities to find liveli­ hood options that did not involve consumptive use of [whales]’.202 Moreover, while the rejection of ASW quotas on the grounds of sustain­ ability of whale stocks is justifiable and consistent with the objectives of the ICRW in general and ASW in particular, there have been times when the IWC has rejected aboriginal quota requests on other non-scientific grounds. For example, the IWC rejected Greenland’s ASW annual catch request of ten humpback whales in 2008 (for the 2008–2012 whaling season) and in 2012 (for the 2013–2018 whaling season), despite the Scientific Committee finding 198 The ICRW does not provide an express provision dealing with the rules and procedures for its amendment. In such circumstances, the Vienna Convention on the Law of Treaties (VCLT) provides a general rule applicable to amending a treaty. Article 39 of the VCLT states that ‘[a] treaty may be amended by agreement between the parties’, which requires the consent of all State parties unless they decide, by two-thirds majority vote, to apply a different rule (see Vienna Convention on the Law of Treaties, concluded at Vienna on 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Arts 39 & 40 read together with Art 9). 199 ICRW (n 12), Arts III(2) & V. 200 See IWC, Chairman’s Report of the 47th Annual Meeting (Dublin, 29 May–2 June 1995) 21; IWC, Chair’s Report of the 64th Annual Meeting (Panama, 2–6 July 2012) 19 & 21 (see India’s statement in particular). 201 See IWC, Chair’s Report of the 59th Annual Meeting (Alaska, 28–31 May 2007) 21. Yet, there is nothing in the ICRW that suggests that whales are different from other MLRs and are not subject to sustainable harvest. 202 See IWC, Chairman’s Report of the 67th Meeting (Brazil, September 2018) 17.

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that the proposed catch request would not harm the stock.203 Likewise, all IWC member States voting against Greenland’s humpback catch request in 2014 – despite the request being approved by the required majority vote – based their votes on grounds not associated with the sustainability of the whale stocks. For example, the group of Latin American States known as the Buenos Aires Group of States (Argentina, Brazil, Chile, Columbia, Costa Rica, Dominican Republic, Ecuador, Mexico, Panama, Peru, and Uruguay) collectively voted against Greenland’s quota request on the grounds that the hunt had a commercial element.204 India voted against the request on the grounds that the proposed quota was not supported by adequate studies on the assessment of the increased need for meat by the aboriginal communi­ ties.205 Monaco abstained because it believed that the nutritional needs of the Greenland Inuit communities were well covered as they ‘take other marine resources such as fish and seals for their subsistence’.206 Given this tendency of many IWC member States to disregard the Scien­ tific Committee’s advice, coupled with the fact that most member States do not have an interest in ASW,207 the ASW exception in general (and the specific quota requests in particular) is vulnerable to being easily rejected. Indeed, a negative vote of one quarter plus one IWC member States present and voting is sufficient to reject the proposed quota request by ASW States.208 Thus, as Firestone and Lilley rightly observe, ‘if the views of a differently opinionated majority always prevail . . . the minorities’ rights will be insecure’.209 The problem is further aggravated by the absence of a dispute settlement provision in the ICRW, which would allow ASW States to resort to appropri­ ate (semi)judicial bodies; the IWC is the only body that can make final deci­ sions by amending the Schedule. Neither the IWC’s rules of procedure nor its rules of debate provide options for reconsideration of rejected ASW catch/ strike limit requests.210 If such a rule existed, an ASW State would be able to reopen the debate by amending its request, and if successful in reopening

203 See IWC, Chair’s Report of the 60th Annual Meeting (Santiago, 23–27 June 2008) 18–23; Chair’s Report of the 64th Annual Meeting (n 200), 23. 204 IWC, Chair’s Report of the 65th Meeting (n 188), 11. 205 Ibid. 206 Ibid. 207 Currently, only aboriginal peoples in four States (the Russian Federation, the US, Green­ land/Denmark, and St Vincent and the Grenadines) use the IWC’s ASW regime. 208 For a detailed discussion, see M Fitzmaurice, Indigenous Peoples in Marine Areas (n 40), 84. 209 J Firestone and J Lilley, ‘Aboriginal Subsistence Whaling and the Right to Practice and Revitalize Cultural Traditions and Customs’ (2005) 8(2–3) Journal of International Wild­ life Law and Policy 177, 218. 210 See IWC, Rules of Procedure and Financial Regulations, as amended by the Commission at the 68th Meeting (October 2022).

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such a request, the members would take another vote.211 Thus, unless the Commission adopts a special voting procedure for determining ASW quotas (by, for example, requiring a lower vote for approval of quota requests, such as simple majority),212 a procedure for reconsideration of its decisions, or provides other dispute resolution avenues, the protection of ASW will remain weak. At its 2018 meeting, upon the joint proposal of the four ASW States, the IWC adopted an important measure to mitigate these problems by provid­ ing for automatic renewal of ASW quotas.213 This approach automatically extends (renews) the current ASW catch limits (including any carry forward provisions) for the next hunting season (next 6-year block commencing in 2026) upon the fulfillment of three conditions. First, the Scientific Commit­ tee must advise in 2024 (and every six years thereafter) that the current catch limit for each stock continues to be sustainable.214 Second, the ASW State concerned does not make a new catch limit request based on changes to the needs of its indigenous peoples.215 Third, the Commission determines that the relevant ASW State has submitted the required information (statement of need) within the approved timeline and that the information represents a status quo continuation of the hunt.216 This approach allows the determina­ tion of ASW catch limits based solely on scientific advice (by removing politi­ cization of the discussions over quota renewals) and thereby provides greater certainty to the needs of indigenous hunters while at the same time provid­ ing safeguards for whale stocks.217 Nonetheless, if any of the conditions are not met (for example, if there is a catastrophic decline in abundance, which makes the current catch quotas unsustainable, or if an ASW State submits an increased quota request based on a change in need), automatic renewal would not occur. In these circumstances, the usual quota approval procedure 211 For a detailed discussion, see C Wold, ‘Integrating Indigenous Rights into Multilateral Environmental Agreements: The International Whaling Commission and Aboriginal Subsistence Whaling’ (2017) 40(1) Boston College International and Comparative Law Review 63, 111. 212 In fact, at the 67th IWC meeting in 2018, in the context of a discussion on the resumption of commercial whaling, proposals for changing the voting procedure of IWC were made. For example, Cambodia ‘believed [that] moving to a simple majority vote for amendments to the Schedule would provide a greater incentive to support compromise’. Similarly, India suggested ‘changing the majority required for amendments to the Schedule from three­ quarters to two-thirds’. See IWC, Chairman’s Report of the 67th Meeting (n 202), 28. These proposals were not endorsed, but they seem feasible in the context of setting catch limits for ASW if not to commercial whaling. 213 Ibid., 17.

214 ICRW, The 2018 Schedule of ICRW (n 182) [13(a)(6)].

215 Ibid.

216 Ibid.

217 See IWC, The 2018 Report of ASWWG (n 173), 14.

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will be followed, and the risk of voting down the ASW quota requests by the Commission remains. However, ASW States are not without other possibilities to safeguard the rights of their indigenous peoples. The ICRW allows State parties to lodge an objection to the Schedule amendments by the IWC – including restrictions on the species of whale, number of catches, or methods of harvest – in which case the amended regulatory measures do not apply to the objecting States until the objection is withdrawn.218 In other words, the objection clause of the ICRW has an effect equivalent to that of a reservation made in accord­ ance with the regulatory approaches of the CITES and CMS (discussed pre­ viously). Gambell observes that ‘[t]his escape clause was designed to allow governments not to be bound by regulations they considered detrimental to their own best national interest’.219 Indeed, some pro-whaling States used this ‘opt out’ provision in connection with the IWC’s decision on the general moratorium on commercial whaling in 1982.220 Thus, nothing prevents ASW States from taking advantage of the objection clause for the benefit of their indigenous peoples if the IWC proposes measures affecting their rights to harvest traditionally used and culturally relevant whale species without suf­ ficient scientific findings.221 Thus, the objection clause provides an extra layer of protection for the State parties having an interest in ASW. The second limitation of ASW under the current IWC framework relates to its failure to allow for indigenous cultural revitalization. According to the IWC’s accepted definition of ASW, only those indigenous peoples who have a longstanding and ‘continuing dependence’ on whales and whaling would 218 ICRW (n 12), Art V(3). 219 R Gambell, International Management of Whales and Whaling (n 154), 99 (emphasis added). 220 The Governments of Japan, Peru, Norway, Iceland, and Russia objected to the general moratorium on commercial whaling. While Peru subsequently withdrew its objection, the remaining States have maintained their objection and the moratorium does not apply to them (see ICRW, The 2018 Schedule of ICRW (n 182), [10(e)] and the accompanying footnote). 221 It is worth noting here that in 2012 Greenland took a step further than the available objec­ tion procedure. When the IWC rejected its request for an ASW quota for humpbacks in the 2013–2018 whaling season on non-scientific grounds, Greenland decided to conduct ASW unilaterally – without the approval of the IWC – and without formally following the objec­ tion procedure. Although many anti-whaling member States requested that the IWC con­ sider Greenland’s unilateral hunting as an infraction, no such infraction was recorded (i.e., the Infractions Committee of the IWC did not consider the hunt as constituting an infrac­ tion). See IWC, Chair’s Report of the 64th Annual Meeting (n 200), 23. For a thorough discussion on Greenland’s unilateral action, see C Wold and MD Kearny, ‘The Legal Effect of Greenland’s Unilateral Aboriginal Subsistence Whale Hunt’ (2015) 30(3) American Uni­ versity International Law Review 561. However, in 2014, the IWC approved Greenland’s ASW catch quota request for the 2014–2018 whaling season (see Chair’s Report of the 65th Meeting (n 188), 11).

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qualify for ASW, as shown previously. As such, a resumption of whaling by indigenous peoples who traditionally conducted whaling but who sub­ sequently either stopped whaling entirely or stopped whaling culturally rel­ evant species – due to past assimilative policies or overexploitation of the species by commercial whaling – would fall outside the ASW definition.222 This was exactly the case for the Makah Indians of Washington State who, in 1996, requested an ASW quota for gray whales to renew their cultural tradi­ tion of whaling following the recovery of the eastern North Pacific stock of gray whales.223 The Makah had suspended their whaling activities in 1926.224 The debate within the IWC concerning the lack of continuity and unbroken whaling tradition of the Makah forced the US to withdraw its request.225 However, the IWC allocated catch quotas for the Makah in 1997.226 This latter decision was reached not because the requirements of ASW were ful­ filled (as no change was made to the established criteria) but rather based on the ‘sympathy of IWC member States towards indigenous peoples’ and other political factors.227 The recognition of an ASW quota for the Bequians of St Vincent and the Grenadines, whose whaling culture is relatively newly established, is another manifestation of the IWC’s politically based decision­ making. Thus, as long as the IWC maintains its narrow definition (stringent criterion) for ASW, the determination of catch quotas for indigenous peoples who want to revitalize their whaling tradition depends on the goodwill of the IWC rather than on a rights-based entitlement. This violates the right of indigenous peoples to revitalize their cultural traditions and customs rec­ ognized under the various instruments of international human rights law, particularly Article 11 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).228 222 RR Reeves, The Origins and Character of Aboriginal Subsistence Whaling (n 40), 99; A Gillespie, ‘Aboriginal Subsistence Whaling: A Critique of the Inter-Relationship between International Law and the International Whaling Commission’ (2001) 12(1) Colorado Journal of International Environmental Law and Policy 77, 122. 223 IWC, Chairman’s Report of the 48th Annual Meeting (Aberdeen, 24–28 June 1996) 26–28. See also J Firestone and J Lilley, Aboriginal Subsistence Whaling (n 209), 185. 224 For a detailed discussion of the treaty right of the Makah people to whaling, see MC Blumm and O Jamin, ‘Indigenous Rights in the US Marine Environment: The Stevens Trea­ ties and Their Effects on Harvests and Habitat’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 291, 300–307. 225 For the full deliberations of the IWC, see IWC, Chairman’s Report of the 48th Annual Meeting (n 223), 26–28. For a detailed discussion, see E Brand, ‘The Struggle to Exercise a Treaty Right: An Analysis of the Makah Tribe’s Path to Whale’ (2009) 32(1) Environs: Environmental Law and Policy 287. 226 IWC, Chairman’s Report of the 49th Annual Meeting (n 186), 30.

227 Ibid., 29.

228 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), UN General

Assembly Resolution 61/295 (adopted 13 September 2007). Article 11(1) of the UNDRIP provides that ‘[i]ndigenous peoples have the right to practice and revitalize their cultural

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The third limitation of ASW relates to the nature of hunting tools and methods. The 1931 Whaling Convention stipulated that indigenous peoples could only take whales if they used canoes, pirogues, or other exclusively native craft propelled by oars or sails and when they did not carry firearms (as discussed previously). The original Schedule of the ICRW did not impose similar limitations. However, the ICRW mandates the IWC to regulate the methods as well as the ‘types and specifications of gear and apparatus and appliances’ that may be used for whale hunting.229 Accordingly, in the early 1950s and 1960s, the IWC required the use of traditional methods – such as the use of small vessels and boats weighing less than 50 tons – to qualify for ASW.230 These restrictions were, however, removed upon the adoption of a definition for ASW and the subsequent amendment of the Schedule, which allowed ASW States to catch whales on behalf of their indigenous peoples.231 Moreover, the IWC has recently totally abandoned the requirement of using traditional hunting methods for ASW on the basis of animal welfare consid­ erations. The IWC now requires the use of modern humane killing methods and tools that reduce cruelty and inhumanity, as well as the number of struck and lost whales.232 Thus, the current policy of the IWC allows indigenous peoples to adopt modern technologies to exercise their traditional rights, a policy that is consistent with the approach of the UN human rights treaty monitoring bodies and regional human rights courts and commissions.233 Nonetheless, the requirement to use modern, humane hunting methods234 may have a limiting effect on the rights of indigenous peoples to harvest whales for two main reasons. First, many aboriginal subsistence whalers may not have the means to introduce modern technologies into their traditional hunting methods to the extent required by the IWC. This is particularly true given that the IWC restricts aboriginal hunting for commercial purposes,

229 230

231 232

233 234

traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures’. See also Chapters 3 and 4 of this book for a detailed discussion. ICRW (n 12), Art V(1)(e) & (g). A Gillespie, ‘Aboriginal Subsistence Whaling: A  Critique of Inter-Relationship between International Law and International Whaling Commission’ (2001) 12(1) Colorado Journal of International Environmental Law and Policy 77, 98. GP Donovan, The International Whaling Commission and Aboriginal/Subsistence Whaling (n 164), 83; and ICRW, The 2018 Schedule (n 182), [13(b(2)]. See IWC, Chairman’s Report of the 37th Annual Meeting (n 186), Appendix-3: Resolu­ tion on Humane Killing in Aboriginal Whaling; and IWC, Chairman’s Report of the 49th Annual Meeting (n 186), Appendix-1: Resolution on Improving the Humaneness of Abo­ riginal Subsistence Whaling. See Chapters 3 and 4 for details. See the IWC’s plenary deliberations in the determination of ASW catch quotas in the annual reports starting from the 1985 onwards. The first direct resolution on the humaneness of ASW was passed in 1985.

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which would serve as a source of income to improve hunting methods.235 Second, requiring a complete transformation of traditional hunting methods to modern technologies may compromise the essential nature of indigenous culture and contradict cultural preservation. In other words, full adaptation to modern technologies may lead to the unintended consequence that indig­ enous peoples lose their cultural traditions protected under international human rights law. As such, the requirement to use modern technology, which deviates from indigenous cultural tradition, may impede indigenous peoples from qualifying for ASW within the current IWC framework. Therefore, the IWC should allow the indigenous peoples concerned to decide on the extent of adaptation of their hunting methods – recognizing their right to control and determine their own cultural evolution as a manifestation of their right to cultural self-determination. Finally, the IWC limits the types of whales that indigenous peoples may hunt in terms of sex, age, and size. The current Schedule prohibits the strike, take, or kill of calves or any female whales accompanied by calves.236 This restriction applies to all species of whales subject to aboriginal hunting regardless of the fact that the ‘specific prohibited prey may have long been the preferred choice of the indigenous peoples claiming the ASW quota’.237 This limitation also applies irrespective of whether the specific species of whale is abundant and not vulnerable to extinction. In short, the limitations associated with ASW relate either to the general framework of the ASW regime within the IWC system or to specific regulatory restrictions and stringent conditions provided by the Schedule of the ICRW itself. The 2018 Report of the Independent Review Team – which reviews the IWC’s institutional and governance arrangements and provides recom­ mendations for reform – fails to provide any recommendations to improve the ASW regime.238 However, the IWC has recently taken some measures – including the introduction of the concept of automatic renewal of catch 235 The IWC established a Voluntary Fund for ASW in 2014 to provide financial assistance to aboriginal whalers who do not have the means to improve their traditional whale killing methods (see IWC, Rules of Procedure and Financial Regulations, as amended by the Com­ mission at the 65th meeting (September 2014), Appendix 2: Voluntary Fund for Aboriginal Subsistence Whaling). See also IWC The 2022 Rules of Procedure and Financial Regula­ tions (n 210). While its implementation remains to be seen, this fund may assist adaptation to modern technologies; and IWC, the 2022 Rules of Procedure and Financial Regulations (n 210), Appendix 1. 236 ICRW, The 2018 Schedule of ICRW (n 182), [13(a(4)].

237 A Gillespie, Aboriginal Subsistence Whaling (n 230), 125.

238 The Report addresses the ASW issue in a single paragraph focusing on the functions of the

ASW Sub-Committee, and simply concludes that the ASW Sub-Committee ‘works well and efficiently, with a high scientific standard, being well supported by Contracting Govern­ ment’. See IWC, Report Submitted by the IWC Review Team: IWC Review – Final Report (IWC 8 April 2018) 29.

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quotas and a timeline for consideration of ASW quota requests – which miti­ gate some of the existing limitations of the ASW regime. Some of the limita­ tions of the ASW regime are due in part to a lack of synergy between the IWC framework and relevant human rights law applicable to indigenous peoples. The following section explores possible options to enhance this synergy. 5.2.4 Towards a human rights-based ASW: the pay-off The rights of indigenous peoples to harvest whales have a legal basis out­ side the framework of the IWC. It derives from, inter alia, the right to self­ determination, the right to culture, and the right to the means of subsistence recognized under the general global and regional human rights instruments and indigenous-specific human rights instruments.239 However, the ICRW does not recognize ASW in the language of human rights, nor does the IWC link its ASW-related activities with the relevant human rights norms appli­ cable to indigenous peoples. As shown in the previous section, some of the limitations associated with the ASW regime – in particular, the lack of recog­ nition accorded to cultural revitalization and linking adaptation to modern technologies to accommodate animal welfare issues rather than the human rights of indigenous peoples – arise due to a lack of synergy between the IWC framework and the relevant human rights law instruments applicable to indigenous peoples and the practice of human rights bodies. Moreover, although the IWC, in its 1982 Resolution, recognized that ‘the full partici­ pation and cooperation of the affected indigenous peoples are essential for effective whale management’,240 its current practice indicates that indigenous peoples have no direct say in ASW activities of the IWC. Rather, their respec­ tive States represent their interests,241 although the IWC occasionally allows indigenous representatives (included in national delegations of ASW States) to speak about the significance of whales to the cultural and subsistence needs of their community before a decision is taken on the proposed ASW quotas.242 Although the different committees and working groups of the

239 See Chapter 4 for a detailed discussion. 240 IWC, Chairman’s Report of the 34th Annual Meeting (Brighton, 19–24 July 1982), Appen­ dix-3: Resolution Concerning Aboriginal Subsistence Whaling, 38. 241 This makes the rights of indigenous peoples to whaling dependent on the willingness of the State of nationality to bring ASW requests before the IWC. For example, even though the Ainu indigenous peoples of northern Japan have had a long tradition of whaling, the government of Japan has never submitted a request for ASW on their behalf. For a detailed discussion, see C Etter, Ainu Folklore: Traditions and Cultures of the Vanishing Aborigines of Japan (Willcox & Follett 1949) 164–173. 242 See, for example, IWC, Chair’s Report of the 62nd Annual Meeting (Morocco, 21–25 June 2010) 18 (the Chairman of the Fishermen and Hunters Organization of Greenland gave a presentation). The representative of the same organization spoke at the 64th annual meeting in 2012 (see IWC, Chair’s Report of the 64th Annual Meeting (n 200), 22). See

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IWC have recently involved representatives of aboriginal peoples in work­ shops and meetings relating to ASW in order to hear their perspectives,243 the participation of indigenous peoples is intermittent and ad hoc. Thus, it is important that the IWC adopt a human rights-based approach to its ASW regime. Some government delegations and ASW States have referred to human rights instruments – particularly the UNDRIP – in ASW discussions of the IWC. For example, in the 2008 annual meeting, following the rejection of Greenland’s ASW quota request, the delegations of Switzerland and Sweden criticized the decision as a violation of the UNDRIP.244 Similarly, at the 2010 annual meeting, in its Schedule amendment proposal for humpback and minke whales, Greenland referred to the UNDRIP provisions on the right to self-determination and the right to determine their own means of subsistence, economic, and social development.245 Speaking in support of Greenland’s amendment proposal, a number of delegations also referred to ‘the require­ ment’ that the IWC ‘act in the spirit of the UN Declaration on the Rights of Indigenous Peoples’.246 The IWC also organized an expert workshop in 2015 to explore ways of improving its ASW regime. The workshop participants raised the important issue of the need for the IWC to consider incorporat­ ing indigenous human rights into its ASW regime, and the ad hoc ASWWG recommended a survey of international indigenous and human rights instru­ ments to inform the Commission’s role in addressing indigenous rights.247 At its 68th meeting in 2022, the IWC endorsed the recommendation,248 and the Secretariat subsequently developed a call for tender to conduct the survey.249 Therefore, the issue is currently not whether but how to incorporate human rights perspectives into the IWC’s ASW regime.

also IWC, Chairman’s Report of the 49th Annual Meeting (n 186), 29 (the representative of the Makah Tribal Council spoke about the importance of whaling to Makah culture). At the 2018 meeting, the Chair allowed the representatives of the Alaska Eskimo Whaling Commission (AEWC), the Makah Tribe, Chukotka communities, and Greenland Inuit to speak about the proposed automatic renewal approach (see IWC, Chairs’ Report of the 67th Meeting (n 202), 8). It is interesting to note here that the indigenous representatives referred to the international human rights instruments – particularly the UNDRIP. 243 See IWC, Report of the Aboriginal Subsistence Whaling Working Group (the 2016 Report of ASWWG), IWC/66/ASW Rep02 (September 2016); and IWC, Report of the 2015 Expert Workshop on ASW, (n 175). 244 IWC, Chair’s Report of the 60th Annual Meeting (n 203), 22. 245 IWC, Chair’s Report of the 62nd Annual Meeting (n 242), 18. 246 Ibid., 20. For a detailed discussion, see N Bankes, The Conservation and Utilization of Marine Mammals (n 17), 294 and the accompanying footnote 5. 247 See The 2018 Report of the ASWWG (n 173), 6–7. 248 IWC, Chairs’ Report of the 68th Meeting (Portoroz, 17–21 October 2022) 31. 249 IWC, Invitation to Tender: The IWC Aboriginal Subsistence Whaling Survey of Indigenous and Human Rights Instruments, IWC.ALL.439, (2023).

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There are at least three possible ways through which the required synergy can be achieved. First, the IWC should expressly incorporate or make cross­ reference to the relevant human rights instruments in the Schedule of the ICRW. This enables the IWC to make use of human rights perspectives – as applicable law – in its task of reviewing ‘need statements’ or ‘description of indigenous hunts’. This also implies that the rejection of ASW quota requests would be in accordance with the legitimate limits of indigenous peoples’ rights recognized under international law – upon fulfillment of the neces­ sity, proportionality, reasonableness, and objective justification criteria. This approach will emancipate the ASW regime from the IWC’s wide discretion and politically based decision-making and will make it a rights-based claim. The second approach involves interpretative interaction. This means that the IWC, including its member States and relevant committees, should be informed of the current developments both in international human rights law pertaining to indigenous peoples and in the practice of human rights bodies. Such developments could be used as important tools in the interpretation and application of the relevant provisions of the ICRW and its Schedule.250 In fact, the IWC has a duty to interpret the ICRW and its Schedule consist­ ently with the evolving international law pertaining to indigenous peoples for two main reasons.251 First, the Vienna Convention on the Law of Trea­ ties (VCLT) requires the interpreter, in this case, the IWC, to interpret the terms of a treaty (the ICRW) in light of ‘any relevant rules of international law applicable in the relations between the parties’.252 Second, customary rules of international human rights law bind the IWC either directly due to its international legal personality or indirectly because its member States have individual responsibilities to implement those rules.253 As discussed in

250 Ibid., 5 & 21. 251 Regarding the duty of international organizations to implement human rights in general, see D Halberstam and E Stein, ‘The United Nations, the European Union, and the King of Sweden: Economic Sanctions and Individual Rights in a Plural World Order’ (2009) 46(1) Common Market Law Review 13 (arguing that ‘States cannot simply avoid international human rights law by bringing to life an international organization and charging it with tasks that would violate human rights standards if undertaken by the members of that organization themselves’ (at 21)). 252 VCLT (n 198), Art 31(3)(c). 253 See C Wold, Integrating Indigenous Rights into Multilateral Environmental Agreements (n 211), 95. Wold argues that obligations found in human rights treaties, which have not become customary international law, do not bind international organizations for two main reasons. First, such treaty law does not apply directly to international organizations as they have not consented to be bound by those treaties. Second, it does not apply indirectly through the obligations of the member States because ‘this would create de facto obliga­ tions on those States that have joined the international organization but have not consented to be bound by the human rights treaty’ (at 99). The latter reason is consistent with Article 34 of the VCLT which provides that ‘a treaty does not create either obligations or rights for a third State without its consent’ – the principle of relative effect of treaty.

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Chapter  3, indigenous peoples’ rights to self-determination, culture, lands, territories, and natural resources, as well as the right to consultation, have become customary international law. Thus, the IWC is required to interpret the terms of the ICRW, such as ‘local consumption’, ‘subsistence needs’, and ‘cultural needs’, in light of these human rights norms. The third way in which interaction between human rights law and the IWC’s ASW regime can be increased is through the participation of indig­ enous peoples in all activities of the IWC relating to the regulation of ASW. The right of indigenous peoples to participate in the decision-making pro­ cesses of international organizations, such as the IWC, is clearly recognized by human rights instruments, as discussed in Chapters 3 and 4. Specifically, Article 18 of the UNDRIP broadly stipulates that ‘indigenous peoples have the right to participate in decision-making in matters which would affect their rights’. As Cambou rightly observes, ‘an expansive interpretation of this provision provides a basis for applying the right of indigenous peoples to participate . . . at the international level, in governance process[es] affect­ ing them’.254 This interpretation is further supported by Article 41 of the UNDRIP, which requires ‘the organs and specialized agencies of the UN system and other intergovernmental organizations’ to establish ‘ways and means of ensuring the participation of indigenous peoples on issues affecting them’.255 These provisions clearly require that the IWC ensure the effective participation of indigenous peoples in its decisions relating to ASW issues. The 2015 Expert Workshop on Aboriginal Subsistence Whaling recom­ mended that the IWC improve the participation of indigenous peoples within its activities by adopting approaches similar to the permanent participant status of indigenous peoples within the Arctic Council or their unique status within the United Nations Permanent Forum on Indigenous Issues.256 While the UN and the Arctic Council are venues for indigenous peoples to discuss a wide range of issues, requiring the establishment of a separate permanent organ within the IWC for a single issue of whaling may be costly. With­ out totally excluding the Expert Workshop’s recommendation, the alterna­ tive option is to include indigenous peoples’ representatives as members of the different IWC bodies dealing with ASW issues, such as the ASW SubCommittee and the ASW Working Group. This would better satisfy the

254 D Cambou, ‘The UNDRIP and the Legal Significance of the Right of Indigenous Peoples to Self-Determination: A Human Rights Approach with a Multidimensional Perspective’ (2019) 23(1–2) International Journal of Human Rights 34, 12. 255 For a detailed discussion of indigenous peoples’ international participatory right, see D Cambou, ‘Enhancing the Participation of Indigenous Peoples at the Intergovernmental Level to Strengthen Self-Determination: Lessons from the Arctic’ (2018) 87(1) Nordic Jour­ nal of International Law 26; MA Murphy, ‘Representing Indigenous Self-Determination’ (2008) 58(2) The University of Toronto Law Journal 185. 256 IWC, Report of the 2015 Expert Workshop on ASW (n 175), 21–22.

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consultation and participation provisions of the relevant human rights instru­ ments applicable to indigenous peoples. In conclusion, enhancing the synergy between the IWC framework and the international human rights law pertaining to indigenous peoples has dual benefits. First, it helps to properly recognize the rights of indigenous peoples to harvest traditionally used whales, consistent with established norms of international human rights law. Second, it also helps improve the IWC’s man­ agement regime by removing or mitigating many of the controversial issues and limitations relating to ASW, including the political-based decisions of the Commission. 5.3 The NAMMCO agreement The persistent problems associated with the IWC created dissatisfaction among certain whaling States. In particular, the adoption of the whaling moratorium and the IWC’s continued unwillingness to lift the moratorium – despite scientific evidence indicating the revival of certain species of whales that could be sustainably harvested – triggered certain pro-whaling States to explore alternative fora to meet their needs.257 This led to the conclusion of the Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in North Atlantic (the NAMMCO Agreement) in 1992 by the Governments of Norway, Iceland, Greenland, and the Faroe Islands.258 The Agreement established the North Atlantic Marine Mammal Commission (NAMMCO), whose objective is ‘to contribute through regional consulta­ tion and cooperation to the conservation, rational management and study of marine mammals in the North Atlantic’.259 The marine mammals covered by the Agreement are all species of cetaceans (whales and dolphins) and pinni­ peds (seals and walruses); thus, the scope of NAMMCO, with respect to the species covered, is broader than the IWC.260

257 AH Hoel, ‘Regionalization of International Whale Management: The Case of the North Atlantic Marine Mammals Commission’ (1993) 46(2) Arctic 116; G Eiriksson, ‘The Legal and Political Position of NAMMCO,’ in Report of the Inaugural meeting of the Council of the North Atlantic Marine Mammal Commission (NAMMCO 10–11 September 1992) 7. 258 NAMMCO Agreement (n 13). The Agreement fostered cooperation amongst State parties under the MoU signed in 1990 and established the North Atlantic Committee (NAC). With the consent of existing signatories, the NAMMCO Agreement is also open for signature to other States (Art 10(2)). 259 Ibid., Arts 1 & 2. NAMMCO consists of four statutory bodies: a plenary council, manage­ ment committees, a scientific committee, and a secretariat (Art 3). 260 See NAMMCO, Preliminary Report of the Scientific Committee on Items Forwarded to it by the NAMMCO Council, prepared for the second meeting of the NAMMCO Council (Tromsø, 19–20 January 1993), Appendices 1 & 2.

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NAMMCO follows a policy of sustainable or rational utilization of marine mammals.261 This is the view that the harvest of marine mammals should be allowed if scientific evidence confirms that the stock will not be threatened by such harvest. As such, NAMMCO does not categorize the whale and seal hunts as aboriginal or commercial but rather emphasizes whether it is ‘sus­ tainable’ or not. The two management committees of NAMMCO – the Man­ agement Committee for Cetaceans and the Management Committee for Seals and Walrus – are mandated to propose appropriate conservation and man­ agement measures, including the maximum catch quotas to member States, on the basis of the Scientific Committee’s advice.262 Measures are adopted by unanimous vote of committee members who are present and cast their vote.263 The member States have full discretion to determine the appropriate catch quotas of marine mammals in light of their domestic laws within the limits of the measures proposed by the management committees and subject to any other applicable rules. Iceland and Norway are not bound by the IWC’s whaling regulations due to Iceland’s reservation and Norway’s objec­ tion to the whaling moratorium.264 In contrast, Greenland and the Faroe Islands are still bound by the IWC’s regulations by way of Denmark’s mem­ bership in the IWC. Inherent in NAMMCO’s policy of ‘rational utilization’ or ‘sustainable harvest’ is the recognition of the rights of indigenous peoples to harvest tra­ ditionally used marine mammals. The chairman of the Organization of Fish­ ermen and Hunters in Greenland (KNAPK) noted that ‘a sustainable harvest of any living resources [including marine mammals] is a human right for the Inuit in the Arctic, and unjustifiable denial is cultural discrimination against our way of life’.265 In this regard, the NAMMCO Agreement requires both the management committees and State parties to give ‘due regard to the needs of coastal communities and indigenous peoples’.266 The specific emphasis on the needs of indigenous peoples in the NAMMCO Agreement is important, at least in two ways. First, it suggests that the management committees should use traditional knowledge267 and take the needs of indigenous peoples into

261 NAMMCO Agreement (n 13), preamble, recital 6. G Eiriksson, The Legal and Political Position of NAMMCO (n 258), 7. 262 Ibid., Art 5(1)(a). 263 Ibid., Art 5(2). 264 While Norway resumed commercial whaling in 1993 pursuant to its objection to the mora­ torium, Iceland only resumed whaling in 2006 on the basis of its reservation. 265 P Olsen (Chairman of the Organization of Fishermen and Hunters in Greenland (KNAPK)), Presentation to the 17th Annual Meeting of NAMMCO, in NAMMCO Annual Report 2007–2008, Appendix 4, 38. 266 NAMMCO Agreement (n 13), preamble, recital 6. See NAMMCO, ‘Culture, Spirituality, and Identity’, available at: https://nammco.no/culture-spirituality-identity/ 267 In March  2023, NAMMCO established a Working Group on Enhancing User Involve­ ment in NAMMCO Decision-Making, which includes representatives of indigenous hunter

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account while making their conservation and management proposals – even though they do not explicitly distinguish their catch proposals as commercial or indigenous harvests.268 Second, it implies that State parties should take all necessary steps to recognize the rights of their indigenous peoples relating to the harvest of marine mammals, as the term ‘due regard’ signifies. This entails that, inter alia, State parties should consult the indigenous peoples concerned and allocate quotas of harvest that sufficiently meet their needs out of the overall catch proposal of the management committees. Since the proposals of the management committees are recommendatory and non-binding in nature,269 this also gives State parties flexibility to adjust the proposed meas­ ures (catch quotas) in a manner that protects the needs of their indigenous peoples, so long as such change does not threaten the survival of the species concerned – the core element of NAMMCO’s policy (sustainability). Unlike the IWC’s ASW framework, neither the NAMMCO Agreement nor the management committees require the fulfillment of stringent conditions for indigenous peoples to qualify to hunt marine mammals in the region. For example, State parties are not required to demonstrate that their indigenous communities have a long and unbroken whale and seal hunting tradition or to submit a need statement to specific NAMMCO bodies. Indeed, NAMMCO criticized the IWC’s requirement for a need statement as an ‘outmoded paternalistic approach’ and as a ‘violation of indigenous peoples’ rights as embedded in international law’.270 Likewise, the existing distinction between subsistence hunting and hunting driven by commercial intent is absent in NAMMCO. At the 17th NAMMCO Annual Meeting, Skagestad noted that a distinction between commercial and . . . subsistence whaling is simply wrong. In both cases we deal with human beings legitimately making a liv­ ing from utilizing natural resources. What counts is whether we deal with sustainable harvesting of nature’s surplus or unsustainable exploitation of these resources.271 Thus, NAMMCO recognizes the sale of whale and seal products in local and international markets by indigenous peoples as an important component

268

269 270 271

organizations that hold traditional knowledge relevant to management of marine mam­ mals. Available at: https://nammco.no/wp-content/uploads/2023/04/tor-wg_user_involve­ ment.pdf (accessed September 2023). For a detailed discussion, see NAMMCO, ‘Marine Mammals: A Multifaceted Resource’ (2017), available at: https://nammco.no/wp-content/uploads/2017/11/marine-mammals-a­ multifaceted-resource.pdf (accessed September 2023). DD Caron, ‘The International Whaling Commission and the North Atlantic Marine Mam­ mals Commission’ (n 28), 164. IWC, Chair’s Report of the 66th Annual Meeting (Slovenia, 24–28 October 2016) 17. Statement by Odd Gunnar Skagestad on behalf of the Norwegian delegation, ‘NAMMCO – Trade Issues’ in NAMMCO Annual Report 2007–2008, Appendix 3, 82.

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of the sustainable use of marine mammals. In fact, NAMMCO criticized the 2009 EU regulation banning trade in seal products, claiming that the ‘ban can have serious consequence for the economies of the many [indigenous] communities dependent on abundant seal stocks across the North Atlantic’ because the complicated conditions make the indigenous exemption to the ban inapplicable.272 As with the IWC, animal welfare consideration is part of NAMMCO’s management policy. A Committee on Hunting Methods was established in 1994 to give advice on hunting methods to the council and member States based on available scientific findings, technological developments, and tra­ ditional knowledge.273 Based on the expert advice, hunters are encouraged to improve their hunting and killing methods and to conduct the hunt in a manner that minimizes animal suffering. However, in contrast to the IWC’s current position, animal welfare is not a criterion on which management committees of NAMMCO base their conservation and management propos­ als (catch quotas) to member States.274 Indeed, the NAMMCO regime recog­ nizes adaptations of indigenous traditional whale and seal hunting methods to modern technologies that ensure humane killings but leaves the deter­ mination of the extent of adaptation solely to the indigenous communities concerned.275 This approach is fully consistent with the current practice of human rights treaty monitoring bodies.276 In short, NAMMCO allows its member States to fix catch quotas for indigenous peoples without needing to meet stringent and complicated procedures similar to those of the IWC’s ASW regime. The stipulation of conditions, if necessary, and the determina­ tion of the needs of indigenous peoples lies solely in the discretion of each member State under its national regulations and consistent with its human rights obligations. In conclusion, NAMMCO has become an attractive international coopera­ tive organization277 which follows a sustainable approach to the conservation 272 NAMMCO, ‘EU Import Ban on Seal Products Is a Huge Step Backwards for Sustainable Development’, statement issued at the 18th Annual Meeting of NAMMCO (Tromsø, 10 September  2009). See also NAMMCO’s similar Statement in 2010, ‘EU Import Ban on Seal Products Contrary to International Principles for Conservation and Sustainable Man­ agement’, statement issued at the 19th Annual Meeting of NAMMCO (Faroe Islands, 2 September 2010). 273 See NAMMCO, Committee on Hunting Methods at: https://nammco.no/committee-on­ hunting-methods/ (accessed September 2023). 274 NAMMCO, Report of the Second Meeting of the Council (Tromsø, 19–20 January 1993) 19. 275 See NAMMCO, Report of the NAMMCO Workshop on Hunting Methods for Seals and Walrus (Copenhagen, 7–9 September 2004) 8, 10, 12 & 14. 276 See Chapter 4 of this book. 277 In 2017, member States of NAMMCO reaffirmed that ‘NAMMCO fulfils its role as an appropriate international management organization for marine mammals in accordance with the United Nations Convention on the Law of the Sea’ (see the ‘Nuuk Declaration’,

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and management of whales, seals, and walruses in the North Atlantic. It serves as an alternative regional management body providing scientific advice for State parties that make reservations or object to IWC’s regulations – like Iceland and Norway – on the basis of which they determine their manage­ ment measures. Although Greenland cannot unilaterally decide whale catch quotas, it has frequently used the advice of NAMMCO’s Scientific Com­ mittee as a basis for preparing its ASW catch request to the IWC. NAMMCO is also a good option for Canada, should it join, because NAMMCO’s approach allows it to determine catch limits for its Inuit peoples while avoid­ ing the IWC’s criticism that it is a non-cooperating State. In short, the NAMMCO Agreement is flexible and does not in any way limit the power of member States to recognize – rather requiring them to give ‘due regard’ to – the rights of indigenous peoples to harvest traditionally used whales, seals, and walruses both for local consumption and commercial purposes. This is consistent with the human rights obligations incumbent on States. 5.4 The 1973 agreement on the conservation of polar bears An increase in trophy hunting and over-hunting of polar bears commer­ cially in some Arctic States in the 1960s, particularly in the US (Alaska) and Norway (Svalbard), necessitated the conclusion of an international agreement to protect polar bears.278 Accordingly, the five Arctic coastal States (Norway, Canada, Denmark, the US, and the former Union of Soviet Socialist Republics) concluded the Agreement on the Conservation of Polar Bears (ACPB) in 1973.279 The ACPB imposes a general obligation on State parties to ‘manage polar bear populations in accordance with sound con­ servation practices based on the best available scientific data’ by paying special attention to habitat components, such as denning and feeding sites and migration routes.280 In addition to this general obligation, the ACPB also specifically requires State parties to prohibit the taking (i.e., the hunting,

Declared on the Occasion of the 25th Anniversary of the Establishment of NAMMCO (Nuuk, 6 April 2017). 278 N Bankes, ‘Polar Bears and International Law’ in N Loukacheva (ed.), Polar Law Textbook II (Temanorden 2013) 123, 123; TS Larsen and I Stirling, ‘The Agreement on the Conser­ vation of Polar Bears – Its History and Future’ (2009) Norsk Polarinstitutt, Rapportserie nr. 127, 5. 279 The State parties to the Agreement have started a biennial Meeting of Parties (MoP) since 2009 with the objective to exchange national updates on the conservation status of polar bears and to review the implementation of the Agreement. The 2011 MoP formally recog­ nized the Polar Bear Specialist Group (PBSG) as a scientific advisory body for the Agree­ ment. See Meeting of the Parties to the 1973 Agreement on the Conservation of Polar Bears (the 2011 MoP of ACPB), Outcome of Meeting (Nunavut, Canada, 24–26 October 2011) 1. 280 ACPB (n 14), Art II.

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killing, and capturing) of polar bears.281 However, the ACPB exceptionally allows the taking of polar bears in circumstances where, inter alia, the tak­ ing is conducted by ‘local peoples using traditional methods in the exercise of their traditional rights’282 and ‘wherever polar bears have or might have been subject to taking by traditional means’ by the nationals of contracting States.283 Even though the ACPB does not make explicit reference to indigenous peoples, it is obvious that many indigenous peoples of the Arctic region are among those ‘local peoples’ who exercise traditional rights associated with polar bear hunting.284 Indeed, State parties to the ACPB, also known as Polar Bear Range States, have expressly recognized indigenous peoples ‘as bona fide partners to the Agreement’.285 While all six Meetings of the Par­ ties (MoP) conducted so far have recognized the importance of polar bears to indigenous peoples,286 the Moscow Declaration adopted by the 2013 MoP makes extensive reference to indigenous peoples.287 The Declaration affirms the special significance of polar bears to the subsistence, social, and cultural well-being of indigenous peoples and recognizes the participation of indigenous peoples – including the use of their traditional knowledge – to inform management decisions and decision-making processes.288 Similarly, the 2015–2025 Circumpolar Action Plan, adopted by the range States to

281 Ibid., Art I.

282 Ibid., Art III(1)(d) (emphasis added).

283 Ibid., Art III(1)(e) (emphasis added). The other exceptions to the prohibition of taking

polar bear include taking ‘for bona fide scientific purposes’, the taking ‘for conservation purposes’, or taking to ‘prevent serious disturbance of the management of other living resources’ (ibid., Arts III(1)(a-c). 284 The Inuit of Alaska, Russia, Canada, and Greenland are typical indigenous groups tradi­ tionally engaged in polar bear hunting. See MMR Freeman and L Foote, Inuit, Polar Bears and Sustainable Use: Local, National and International Perspectives (CCI Press 2009); MMR Freeman, RJ Hudson, and L Foote, Conservation Hunting: People and Wildlife in Canada’s North (CCI Press 2005). 285 TS Larsen and I Stirling, The Agreement on the Conservation of Polar Bears (n 279), 3 & 10 (emphasis added). 286 See Meeting of the Parties to the 1973 Agreement on the Conservation of Polar Bears (the 2009 MoP of ACPB), Outcome of Meeting (Tromsø, Norway, 17–19 March 2009) 1; The 2011 MoP of ACPB, Outcome of Meeting (n 280), 1; Meeting of the Parties to the 1973 Agreement on the Conservation of Polar Bears (the 2013 MoP of ACPB), Outcome of Meeting (Moscow, Russian Federation, 5–6 December 2013) 1–2; Meeting of the Par­ ties to the 1973 Agreement on the Conservation of Polar Bears (the 2015 MoP of ACPB), Outcome of Meeting (Ilulissat, Greenland, 1–3 September 2015) 1; Meeting of the Polar Bear Range States (the 2018 MoP of ACPB), Meeting Outcome Report (Alaska, US, 2–4 February 2018) 1 & 5; Meeting of the Polar Bear Range States (the 2020 MoP of ACPB), Meeting Outcome Report (Svalbard, Norway, 4–6 March 2020). 287 Declaration of the Responsible Ministers of the Polar Bear Range States (Moscow Declara­ tion), (Moscow, 4 December 2013). 288 Ibid.

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strengthen international cooperation for the effective conservation of polar bears throughout their range, embraces indigenous peoples of the region as ‘active partners’.289 As part of the creation of the Circumpolar Action Plan, range States also established a Traditional Ecological Knowledge (TEK) Working Group responsible for undertaking all activities related to TEK.290 In addition, the Range States’ Rules of Procedure allows ‘any indigenous group which expresses an interest in the matters covered by the Agreement [to] be accredited as an observer’ to the meetings of Range States.291 While limiting the status of indigenous peoples only as observes, the rules of pro­ cedure recognize their right to participate in all MoPs. Thus, the exception clause of the ACPB applies to indigenous peoples’ polar bear hunting prac­ tices, and in fact, indigenous harvest has been practiced in four of the five range States (the exception being Norway) pursuant to this provision.292 The ACPB’s exception allows indigenous hunting of polar bears only through the use of ‘traditional hunting methods’. However, the Agreement neither defines what constitutes ‘traditional methods’ in the context of polar bear hunting nor does it provide a list of those methods. Yet, Article IV of the ACPB states that ‘the use of aircraft and large motorized vessels for the pur­ pose of taking polar bears shall be prohibited except where the application of such prohibition would be inconsistent with domestic laws’.293 This provision has two important implications. First, it suggests that any hunting methods and tools short of aircraft and large motorized vessels are not prohibited and therefore fall within the meaning of ‘traditional methods’. Second, the State party still has the discretion to allow the use of aircraft and large motorized vessels under its domestic law. Thus, it is possible to argue that the ACPB, interpreted in light of current legal developments, does not prohibit tradi­ tional indigenous hunting methods from adapting to modern technologies.

289 Circumpolar Action Plan: Conservation Strategy for the Polar Bear, a product of the representatives of the parties to the 1973 Agreement on the Conservation of Polar Bears (September 2015). 290 See Polar Bear Range States, Traditional Ecological Knowledge, available at: https:// polarbearagreement.org/working-groups/traditional-ecological-knowledge-tek (accessed September  2023). The TEK Working Group prepares a Range States definition of TEK. See Involvement of Indigenous Peoples and Incorporation of TEK, available at: https:// polarbearagreement.org/polar-bear-management/involvement-of-indigenous-peoples-and­ incorporation-of-tek (accessed September 2023)), and a Compendium of Existing Guide­ lines for the Use of TEK in Decision Making, available at: https://polarbearagreement.org/ index.php/resources/topics/traditional-ecological-knowledge-tek/compendium-of-existing­ guidelines-for-the-use-of-tek-in-decision-making (accessed September 2023). 291 The 1973 Agreement on the Conservation of Polar Bears Rules of Procedure for Contract­ ing Parties, adopted at the 2018 MoP, Alaska, 4 February 2018, [7.1.3]. 292 See N Bankes, ‘Arctic Ocean Management and Indigenous Peoples: Recent Legal Develop­ ments’ (2019) 11 Yearbook of Polar Law. 293 ACPB (n 14), Art IV.

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Another important aspect of the ACPB is that it inferentially allows trade in products of polar bears obtained through indigenous hunting practices. Article V of the ACPB provides that a ‘Contracting Party shall prohibit the exportation from, the importation and delivery into, and traffic within, its territory of polar bears or any part or product thereof taken in violation of this agreement’.294 This prohibition only applies to products of polar bears taken illegally and not to those products obtained legally through the excep­ tions clause. More specifically, Article III(2) of the ACPB stipulates that the skins and other items of value resulting from the taking [under Arti­ cle III(1)(b) and (c), i.e., the taking of polar bears by State parties for conservation purposes and to prevent serious disturbance of the man­ agement of other living resources] shall not be available for commercial purposes.295 The a contrario interpretation of this provision suggests that the skins and other items resulting from the taking of polar bears pursuant to the other exemptions provided under Article III(1) – including taking by indigenous peoples – could be available for commercial purposes. These interpretations are supported by the recent practice of State parties to the ACPB. For example, trade in products from polar bears was one of the themes of the 2013 MoP, where range States declared their commitment to work actively to explore mechanisms to counter illegal trade in polar bear products and ‘to improve the clarity of legal trade data through the adop­ tion of more effective reporting and monitoring practices’.296 Thus, the MoP affirmed that trade in products of polar bears obtained through legal indig­ enous hunting practices – consistent with the previously mentioned provi­ sions of the ACPB – is allowed. Additionally, the recommendations of the Trade Working Group, which suggests mechanisms to achieve international cooperation to control trade in specimens of polar bears, do not exclude trade in products of polar bears by indigenous peoples.297 Therefore, while not explicit, the ACPB recognizes intra- and inter-State trade with polar bear products by indigenous peoples.298

294 Ibid., Art V (emphasis added).

295 Ibid., Art III(2) (emphasis added).

296 The Moscow Declaration of the Responsible Ministers of the Polar Bear Range States

(n 288) (emphasis added). 297 See The 1973 Polar Bear Range State Agreement, Trade Working Group Recommenda­ tions, available at: https://docs.google.com/viewer?url=https://polarbearagreement.org/ component/edocman/trade-working-group-recommendations/fdocument?Itemid=9999 (accessed September 2023). 298 See Polar Bear Range States, Mid Term Review of the Circumpolar Action Plan, the 2020 MoP (Svalbard, Norway 4–6 March  2020). For a detailed review of trade in products

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In conclusion, the ACPB recognizes indigenous polar bear hunting excep­ tion, which, in the last decade, further evolved through the practice of the MoP.299 State parties embrace the various concerns of indigenous peoples recognized under international human rights law even though none of the outcome documents of their meetings makes specific reference to any of the human rights instruments applicable to indigenous peoples. Thus, while the ACPB does not obligate State parties to allow indigenous peoples to harvest polar bears, it does not limit their capacity to recognize the rights of their indigenous peoples to hunt polar bears. State parties have broad discretion regarding the type of measures they may take for the conservation of polar bears, the appropriate catch quotas they may establish, and other conditions they may stipulate for the taking of polar bears by their indig­ enous peoples – pursuant to the Agreement’s exemption clause. Therefore, they can recognize the rights of their indigenous peoples to harvest polar bears without violating their obligations under the ACPB. Since the ACPB does not provide specific provisions on the regulation of shared popula­ tions of polar bears, State parties may also enter into bilateral agreements to regulate the harvest of polar bear populations shared by their respective indigenous peoples. Currently, there are three bilateral agreements on the conservation of shared populations of polar bears, namely the US-Russia agreement on the conservation and management of the Alaska-Chukotka polar bear population,300 the Canada-Nunavut-Greenland agreement for the management of the polar bear population of the Kane Basin and Baf­ fin Bay,301 and the Inuvialuit-Inupiat agreement for the management of the Southern Beaufort Sea polar bear population.302 All of these agreements give due recognition to the special interests of indigenous peoples with respect to polar bears and offer institutional mechanisms where representatives of

299 300

301

302

of polar bear by the indigenous peoples of Canada, see Ernest WT. Cooper, Review and Analysis of Canadian Trade in Polar Bears from 2012–2021, 28 September 2022. See N Bankes, Arctic Ocean Management and Indigenous Peoples (n 293), 26. Agreement between the Government of the United States of America and the Government of the Russian Federation on the Conservation and Management of the Alaska-Chukotka Polar Bear Population, signed at Washington on 16 October 2000 (entered into force 23 September 2007). Memorandum of Understanding between the Government of Canada, the Government of Nunavut, and the Government of Greenland for the Conservation and Management of Polar Bear Populations, signed in Greenland on 11 November 2009, available at: https:// polarbearagreement.org/resources/8-1-mou-governments-of-canada-nunavut-greenland (accessed September 2023). The Inuvialuit-Inupiat Polar Bear Management Agreement in the Southern Beaufort Sea, signed by the Inuvialuit Game Council and the North Slope Borough Fish and Game Management Committee (Inuvik, Canada, 4 March  2000), available at: https:// polarbearagreement.org/images/Docs/Inuvialuit_Inupiat_PB_Agreement_2000.pdf (accessed September 2023).

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indigenous peoples participate in decision-making processes on the use and management of shared polar bears.303 6. Conclusion The agreements on the conservation and management of marine mammals canvassed in this chapter must grapple with the potential tension associated with protecting endangered species of marine mammals and the harvest of such species by indigenous peoples. The LOSC confers broad discretion on State parties, which enables them to accommodate the rights of indigenous peoples to harvest marine mammals. While CITES regulates trade in prod­ ucts of Appendix I marine mammals more strictly, it still grants State parties broad discretion with regard to Appendix II and III marine mammal prod­ ucts and the option to make reservations on the listing of marine mammals (which are traditionally used by indigenous peoples) in all its appendices at the appropriate point in time. The CMS provides both an exemption to indigenous peoples to harvest marine mammals and the option for State par­ ties to make reservations to any of the species listed under its appendices. Likewise, an ‘indigenous exemption’ is a common feature of all instruments dealing with the conservation and management of specific types of marine mammals, such as seals, whales, and polar bears. The ICRW provides not only an exemption for ASW where State parties can apply to the IWC for an indigenous quota (in which case the final decision is made by the IWC) but also provides the option to lodge an objection to the regulatory meas­ ures of the IWC at the time of amendment of the Schedule – the effect being that an objecting State would not be bound by those regulations and can unilaterally determine harvest quotas to its indigenous peoples. The NAMMCO Agreement allows State parties to determine sustainable catch levels of marine mammals with ‘due regard’ to their indigenous peoples. Thus, it is safe to conclude that providing exceptional recognition of the rights of indig­ enous peoples to harvest marine mammals – to the extent that such harvest would not be detrimental to the survival of the species concerned – enjoys widespread practice. Agreements dealing with specific marine mammals offer more detailed treatment of indigenous peoples’ rights. Particularly, agreements on the conservation and management of polar bears are flexible and inclusive of indigenous peoples’ representatives in decision-making bodies. All the spe­ cific agreements also recognize the sale of marine mammal products by indig­ enous peoples to generate income, even though the exact scope of such right remains unclear and controversial. In addition, while the use of traditional 303 Due to limited space a detail discussion of these bilateral agreements has not been made here.

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hunting methods was the main criterion imposed by most agreements for indigenous peoples to qualify for the respective exemption, these agreements have now evolved and allow adaptations to modern technologies. However, this change has not been triggered by the human rights concerns of indig­ enous peoples but rather by animal welfare concerns. In sum, the agreements explored in this chapter do not significantly limit the power of coastal States to recognize the rights of their indigenous peoples to harvest marine mammals consistent with their human rights obligations. The inherent flexibility built into the regulatory approaches of the respective international instruments enables coastal States to design their conservation and management measures of marine mammals in a way that is compatible with the rights of indigenous peoples – as recognized under international human rights law. Thus, coastal States cannot invoke their obligations to conserve marine mammals arising from those instruments to justify their failure to take positive measures – i.e., to utilize all options available under instruments dealing with the conservation and management of marine mam­ mals – to recognize the human rights of indigenous peoples to harvest marine mammals. Moreover, with respect to some of the agreements, particularly the ICRW, the chapter also highlights certain areas that require the IWC and its member States to create enhanced synergy with international human rights law. This relates particularly to the scope of commercial versus subsistence hunting, the IWC’s decision-making procedures, and the participation of indigenous peoples in decision-making regarding the management of marine mammals.

Chapter 8

Beyond international maritime boundaries Traditional fishing rights of indigenous peoples within maritime zones of other states

1. Introduction The law of the sea has been in a state of progressive development. Whilst coastal States had sovereignty only over a limited area of ocean space (a territorial sea of 3 nautical miles (nm)) under the traditional law of the sea, the United Nations Convention on the Law of the Sea (LOSC)1 creates a geographically fragmented legal regime by dividing ocean space into dif­ ferent maritime zones and enclosing large areas of ocean space, previously high seas, under the sovereignty or exclusive control of coastal States. This zonal approach conflicts with the indigenous peoples’ holistic understanding of ocean space and allows coastal States to effectively exclude indigenous peoples inhabiting coastal areas of neighboring States from exercising their traditional fishing rights (TFRs) that have existed since time immemorial. Indeed, for coastal indigenous peoples, State maritime boundaries represent foreign impositions that have disrupted longstanding social relations among communities and obstructed access to traditional marine areas and economi­ cally important marine resources.2 This chapter explores the relevance of the concept of TFRs under the cur­ rent law of the sea regime and its application for indigenous peoples by ana­ lyzing relevant provisions of the LOSC, jurisprudence of international courts and tribunals, and State practice on TFRs as reflected in bilateral agreements. Section 2 discusses the meaning and basic characteristics of TFRs, following which Section 3 discusses the legal status of TFRs in the pre-LOSC regime. By analyzing the relevant provisions of the LOSC as well as the jurisprudence of international courts and tribunals, Section 4 explores whether and to what extent the LOSC preserves TFRs in the different maritime zones. Section 5

1 United Nations Convention on the Law of the Sea (LOSC), concluded at Montego Bay on 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). 2 DM Schug, ‘International Maritime Boundaries and Indigenous People: The Case of the Tor­ res Strait’ (1996) 20(3) Marine Policy 209. See also C Gupta and M Sharma, Contested Coast­ lines: Fisherfolk, Nations and Borders in South Asia (Routledge 2008).

DOI: 10.4324/9781003242772-11

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discusses the application of the concept of TFRs for indigenous peoples, while Section  6 explores certain bilateral maritime boundary delimitation agreements dealing with TFRs of indigenous peoples. Finally, Section 7 pro­ vides some concluding remarks. 2. Meaning and basic characteristics of TFRs There is no universally accepted definition for TFRs in the law of the sea. Neither the LOSC nor the UN Fish Stocks Agreement (UNFSA)3 nor any other multilateral treaty provides a definition for TFRs. However, certain bilateral agreements,4 international courts, and arbitral tribunals5 that deal with the issue of TFRs provide some clarifications on the concept of TFRs. In general terms, TFRs can be understood as a form of historic rights – a generic legal term describing different historical entitlements both in mari­ time and land domains.6 Historic rights in the maritime context can be grouped into two broad categories. First, historic rights that give rise to sov­ ereignty or exclusive rights short of sovereignty; and second, historic rights that result in non-exclusive use rights. The first category of historic rights includes historic waters7 and claims of exclusive rights over the living and non-living resources of the waters beyond the territorial sea, including within overlapping exclusive economic zones (EEZs) and continental shelf claims and parts of the high seas.8 The existence of historic title – ‘a title that has been created, or consolidated, by a process of prescription, or acquiescence, 3 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA), adopted 4 August 1995, entered into force 11 December 2001, 2167 UNTS 3. 4 The relevant bilateral agreements are discussed in Section 6 of this chapter. 5 The findings of these international courts and tribunals on TFRs are discussed in Section 4 of this chapter. 6 Z Keyuan, ‘Historic Rights in International Law and in China’s Practice’ (2001) 32(2) Ocean Development and International Law 149, 150. 7 The International Court of Justice (ICJ) defines historic waters as ‘waters which are treated as internal waters, but which would not have that character were it not for the existence of an historic title’ (See the Anglo-Norwegian Fisheries Case (United Kingdom v Norway) (Judge­ ment) [1951] ICJ Rep 116, 130). Thus, historic waters have the same legal status as internal waters insofar as the coastal State has complete sovereignty over those waters. The LOSC spe­ cifically recognizes one type of historic water in the form of historic bays under Article 10(6) and recognizes historic title in the context of the delimitation of overlapping territorial seas pursuant to Article 15. For a detailed discussion on the concept of historic waters, see C Sym­ mons, Historic Waters in the Law of the Sea: A Modern Reappraisal (Martinus Nijhoff 2008). 8 China claimed this type of historic right in maritime areas enclosed by the so-called nine-dash line in the South China Sea (an area extending its possible EEZ limits), which the South China Sea Tribunal characterized as ‘a constellation of [exclusive] historic rights short of title’; and concluded that such a claim could not survive the adoption of the LOSC as a matter of law. See South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of

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or by possession so long continued as to have become accepted by the law as a title’9 – is a necessary requirement in establishing the first category of historic rights. Thus, a State must prove three essential elements of historic title to acquire sovereignty or exclusive rights short of sovereignty over a particular part of ocean space, namely: (i) constant practice or the exercise of effective control over the maritime area in question for a long period of time and to the exclusion of all other States;10 (ii) obtaining recognition or acquiescence from other States with respect to the exercise of its authority;11 and, (iii) demonstration of its vital security or economic interest over the maritime area.12 TFRs, also known as historic fishing rights, fall under the second category of historic rights – i.e., historic rights that do not result in the acquisition of sovereignty or exclusive rights over the maritime area. TFRs instead entail a right to access a marine space and to continue to exercise fishing practices and other related activities of a non-exclusive character.13 Put differently, TFRs are rights claimed by artisanal fishing communities of one State to continue fishing and conducting other traditional activities within a maritime zone falling under the sovereignty or exclusive jurisdiction of another State on the basis of longstanding fishing practices and historical attachment to the specific area of ocean space – before such area was included under the exclu­ sive jurisdiction of the latter State.14 It is a right of trans-maritime-boundary access and exploitation of resources acquired through long usage/immemo­ rial fishing practices in a specific area of ocean space.15 China), Arbitral Tribunal Constituted under Annex VII of the 1982 United Nations Conven­ tion on the Law of the Sea, PCA, Award on the Merits (12 July 2016), [229 & 243]. 9 Arbitration between the Government of the State of Eritrea and the Government of the Republic of Yemen, Award of the Arbitral Tribunal in the First Stage of the Proceedings (Ter­ ritorial Sovereignty and Scope of the Dispute), Phase I, London (9 October 1998), [106]. The United Nations (UN) Study on Historic Waters adopted a similar definition for historic title (see Study Prepared by the UN Secretariat, ‘Juridical Regime of Historic Waters, Including Historic Bays’, Doc A/CN.4/143 (March 1962)). 10 Regarding this element, the South China Sea Tribunal held that the exercise of freedoms permitted under international law cannot give rise to a historic title as it involves no exclu­ sivity of other States and can only represent the use of what international law already freely permits (South China Sea Arbitration (n 8), [268–269]). 11 Silence or absence of effective protest on the part of foreign States is sufficient to establish acquiescence (see Anglo-Norwegian Fisheries Case (n 7), 138). 12 Ibid., 133; and Eritrea/Yemen Award, phase I (n 9), [106 & 107]. 13 South China Sea Arbitration (n 8), [225]. See also G Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law’ (1953) 30(1) British Yearbook of International Law 1, 51. 14 P Dyspriani, ‘Traditional Fishing Rights: Analysis of State Practice’ in UN Division for Ocean Affairs and the Law of the Sea (DOALOS 2011) 2. 15 WM Reisman and MH Arsanjani, ‘Some Reflections on the Effect of Artisanal Fishing on Maritime Boundary Delimitation’ in TM Ndiaye and R Wolfrum (eds), Law of the Sea, Envi­ ronmental Law and Settlement of Disputes (Martinus Nijhoff 2007) 350, 642, 658–659.

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TFRs have certain essential characteristics that differentiate them from historic title claims. First, unlike the mode of acquisition of historic title, which involves actions of a State or persons authorized to act on its behalf, TFRs are established through the actions of private individuals or communi­ ties who do not necessarily have authorizations from the State.16 The natural consequence of this is that the right holders/beneficiaries of TFRs are private individuals or artisanal fishing communities rather than States, as in the case of historic title.17 This includes indigenous peoples.18 Second, contrary to claims of historic title,19 claims of TFRs can be made in ocean space close to the coast of other States (i.e., within the internal waters and the territorial sea).20 Third, since TFRs are claims of non-exclusive rights, a State claiming (on behalf of its fishing communities) to have acquired TFRs in waters whose high seas status has been altered in favor of a proximate coastal State is not required to prove the exclusivity of the practice and acquiescence of other States.21 It suffices for the State to demonstrate that its nationals have been exercising fishing activities in the maritime area from time immemorial, even when those activities were exercised as part of the freedom of the high seas (i.e., in the absence of exclusivity).22 However, there is no specific standard for the intensity of the fishing practice and the length of time that must elapse before the practice materializes into a TFR. The nature of artisanal fishing tools and methods also vary from region to region or from community to community in keeping with local customs.23 Thus, these factors vary depend­ ing on the specific facts of the case and should be assessed on a case-by-case basis. In short, a low threshold of proof is required for establishing a TFR as it has no exclusionary effect on the rest of the international community.24 Fourth, the material content or scope of TFRs is broadly understood. TFRs cover not only fishing/harvesting of marine living resources (MLRs) but also include other activities traditionally associated with artisanal fishing, 16 Ibid., 637; and G Fitzmaurice, The Law and Procedure of the International Court of Justice (n 13), 51 & 53. 17 All the international arbitral tribunals (discussed in Section 4 of this chapter) have unam­ biguously affirmed this position. 18 For a detailed discussion, see Section 5 of this chapter. 19 Bouchez argues that it is ‘impossible for a . . . State to be entitled over a sea area situated near the coast of other States [as part of its exclusive historic rights]’ (see LJ Bouchez, The Regime of Bays (n 7), 238). 20 See Sections 4 and 6 of this chapter for a detailed discussion. 21 Since the beneficiaries of TFRs are private individuals or communities, the State will make the claim on behalf of such individuals or communities as discussed in more detail further on. 22 S Kopela, ‘Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration’ (2017) 48(2) Ocean Development and International Law 181, 197; Reisman and Arsanjani, Some Reflections on the Effect of Artisanal Fishing (n 15), 638–639. 23 For the findings of international courts and tribunals regarding these matters, see Section 4 of this chapter. 24 Reisman and Arsanjani (n 15), 640; and S Kopela (n 22), 193.

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such as unimpeded passage from community base stations to the traditional fishing ground, the use of islands for temporary shelter or for drying and salt­ ing of the harvested fish or for repairing hunting and fishing tools.25 Since, for most indigenous peoples, marine areas are social and cultural spaces as much as they are economic spaces, TFRs also include access to marine areas to conduct traditional, cultural, customary, and spiritual activities.26 This makes clear that TFRs are characterized not only in terms of their tempo­ ral manifestation (i.e., as being undertaken for an extensive period of time in a specific fishing ground) but also by their cultural and intergenerational dimension – as being transferable from generation to generation as an inte­ gral part of the cultural identity of the indigenous peoples concerned.27 All this said, due to the absence of a universally accepted definition for the term ‘traditional’, significant controversy exists as to what constitutes ‘traditional’ in the context of TFRs, which has (in turn) impacted the recog­ nition and respect for TFRs. Simply put, the term ‘traditional’ in connection with TFRs has been given different meanings at different times and in differ­ ent contexts to refer to the length of time of the fishing practices, the fishing grounds, the use of traditional (non-modern) fishing tools and methods, or the holders of TFRs (communities). These are essential, but also controver­ sial, elements of TFRs, as the following sections will demonstrate. 3. Status of TFRs in the pre-LOSC regime: vested rights recognized under customary international law A vested right is ‘a right resting on a special title of acquisition, as contrasted with statutory rights attributed to all or to a definite class of persons by a legal rule’.28 The doctrine of respect for vested rights, as a general principle of law, protects the acquired private rights of nationals of one State within the ter­ ritorial jurisdiction of another State. The doctrine was originally applied in the context of a change in sovereignty over a territory as a result of cession or conquest (i.e., in the event of State succession), and it requires the new sover­ eign State to continue to recognize and respect existing private property rights of inhabitants of the territory over which it assumes sovereignty.29 The Perma­ nent Court of International Justice (PCIJ) applied this principle in its Advisory 25 For a detailed discussion, see Section 4 of this chapter.

26 See EL Enyew and N Bankes, ‘Accommodating the Traditional Fishing Rights of Indigenous

Peoples within the Legal-Spatial Architecture of Ocean Space and Assertions of State Sover­ eignty’ in A Serdy and S Lalonde (eds), Research Handbook on the Law of the Sea (Edward Elgar 2023). 27 Campbell and Wilsen, ‘The Politics of Exclusion: Indonesian Fishing in the Australian Fish­ ing Zone’ (1993) Indian Ocean Center for Peace Studies, No 5, 74. 28 G Kaeckenbeeck, ‘The Protection of Vested Rights in International Law’ (1936) 17 British Yearbook of International Law 1, 1–2. 29 Ibid., 8–9.

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Opinion on German settlers in Poland.30 Several German settlers who inhab­ ited the territory ceded by Germany to Poland acquired land holdings through contracts concluded with the German Colonization Commission. In respond­ ing to the main issue of whether the Polish government was entitled to termi­ nate the settlers’ landholdings, the PCIJ concluded that the settlers acquired a vested right over the lands under the existing law and that those private rights do not cease on a change of sovereign.31 The Court further held that: Even those who contested the existence in international law of a general principle of State succession do not go so far as to maintain that private rights including those acquired from the [former] State as the owner of the property are invalid as against a successor in sovereignty.32 Recently, the doctrine of respect for vested rights has acquired a more gen­ eral application in the context of the delimitation of land territories between States. For example, the Abyei Arbitral Tribunal, while delimiting the bound­ aries of the Abyei area, held that such delimitation is without prejudice to traditional grazing rights. Accordingly, it concluded that the Misseriya and other nomadic peoples retained their traditional rights to graze cattle and move across the boundaries of Abyei.33 The doctrine of respect for vested rights is equally relevant to maritime areas in the context of recognizing the continuity of TFRs. Analogous to land territories, the question of recognition and respect for TFRs arises upon a change in the status of the ocean space: either when waters that were pre­ viously high seas are included under the sovereignty or sovereign rights of an adjacent coastal State or in the context of delimitation of overlapping maritime zones. As such, the doctrine of respect for vested rights requires a coastal State to continue to recognize and respect existing TFRs of nationals of other States within newly claimed waters. Fitzmaurice argues that TFRs are vested rights established through immemorial fishing practices in a spe­ cific area of the high seas and should remain undisturbed upon a change in the status of the ocean space.34 He observes that: [I]f the fishing vessels of a given country have been accustomed from time immemorial, or over a long period, to fish in a certain area [of high seas], 30 Questions relating to Settlers of German Origin in Poland (Advisory Opinion) [1923] PCIJ, Series No 6. 31 Ibid., 36. 32 Ibid. (emphasis added). 33 Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/Army (Abyei Arbitration), PCA, Final Award (22 July 2009), [766 & 770(e)]. For the Tribunal’s general analysis of traditional rights, see [748–766]. 34 G Fitzmaurice, The Law and Procedure of the International Court of Justice (n 13), 51–52; Reisman and Arsanjani, Some Reflections on the Effect of Artisanal Fishing (n 15), 658.

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it may be said that their country has through them . . . acquired a vested interest that the fisheries of that area should remain available to its fishing vessels (of course on a non-exclusive basis) – so that if another country asserts a claim to that area as territorial waters, which is found to be valid or comes to be recognized, this can only be subject to the acquired rights of [the] fishery in question, which must continue to be respected.35 In short, if nationals of a particular State have exercised fishing practices for a long time in a particular marine area, a vested interest conferring special rights to continue the exploitation of the resources within that area can be said to have formed, even though the area falls under the sovereignty or exclusive jurisdiction of an adjacent coastal State.36 Since the early 20th century, international courts and tribunals have rec­ ognized this principle of continuity of TFRs. For example, in the 1909 Gris­ bådarna arbitration between Norway and Sweden for delimitation of their overlapping territorial seas, the Tribunal partly justified the demarcation of the Grisbådarna banks on the side of Sweden on the basis of traditional fish­ ing practices of Swedish fishermen.37 The Tribunal held that ‘the fact that lobster fishing in the shoals of Grisbådarna has been carried on for a much longer time, to a much greater extent, by a much greater number of fisher­ men on the part of the subjects of Sweden than on the part of those of Nor­ way’ led it to assign the banks to Sweden.38 In articulating the doctrine of respect for vested rights, the Tribunal concluded that ‘it is a well-established principle of the law of nations that the state of things that actually exists and has existed for a long time should be changed as little as possible’.39 The Tribunal underlined that ‘this principle is especially applicable in the case of private interests’ as TFRs ‘which, once disregarded, cannot be effectively preserved by any manner of sacrifice’ by the State of the nationality of such interested private persons.40

35 G Fitzmaurice, ibid., 51 (emphasis added).

36 Ibid., 52.

37 The Grisbådarna Case (Norway v Sweden), PCA, Award on the Merits (23 October 1909)

(Unofficial English Translation), 6, available at: https://pcacases.com/web/sendAttach/508 (accessed September  2023). The parties mandated the Tribunal to delimit the maritime boundary having regard to the factual circumstances and ‘the principles of the law of nations’ (at 2). 38 Ibid., 6 & 7. The Tribunal clearly acknowledged that lobster fishing is the most important on the banks of Grisbådarna, and that this fishing practice gives the banks their value as a fishing area. Sweden’s other activities in the area, such as the placing of beacons and the installation of a lightship, are the other factual circumstances that support the delimitation of Grisbådarna banks on the side of Sweden (at 6 & 7). 39 Ibid., 6. 40 Ibid. By adjusting the median line to include Grisbådarna banks on the Swedish side, the Tribunal went further than recognizing a continued non-exclusive right to fish.

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In the Anglo-Norwegian Fisheries case, the International Court of Justice (ICJ) recognized the general principle that historic rights would continue to be exercised within waters under the jurisdiction of other States in spite of the fact that such exercise might constitute a derogation of general rules of international law.41 In particular, Judge Alvarez, in his individual opinion, observes that a coastal State might determine the extent of its territorial waters on condition that, inter alia, ‘it does not infringe rights acquired by other States’, which includes TFRs.42 The ICJ reaffirmed this position in the Fisher­ ies Jurisdiction cases, concluding that Iceland while having a preferential right over the unilaterally extended 50 nm exclusive fishing zone (EFZ), should accommodate the TFRs of the claimant States (i.e., the United Kingdom (UK) and Germany) within those waters on two grounds. First, the claimed non­ exclusive fishing rights had been established for a long period of time within the extended maritime areas, and Iceland was, therefore, bound to respect those acquired rights.43 Second, a denial of such existing rights would have a detrimental impact on the livelihoods of the fishermen who depend on con­ tinued access to the fishing grounds.44 Thus, the preferential rights of Ice­ land over its extended EFZ and the existing TFRs of the UK and Germany were declared to co-exist.45 Indeed, in the 1960s and 1970s, when coastal States unilaterally extended their sovereignty and jurisdiction, the recogni­ tion of existing TFRs within those extended maritime areas was also a widely accepted state practice (unilaterally under domestic legislations or through bilateral agreements) and subsequently became customary international law.46 In conclusion, the crucial proposition of the doctrine of respect for vested rights is the principle of continuity, which posits that the acquisition of sov­ ereignty or exclusive jurisdiction over a certain marine territory by a coastal State does not erase/extinguish private entitlements based on prior/tradi­ tional use unless an explicit agreement to the contrary exists. The underlying rationale for the continued respect for TFRs is to maintain legal stability

41 Anglo-Norwegian Fisheries Case (n 11), 130–131.

42 Ibid., 150.

43 Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Ice­ land) (Judgment), ICJ Reports 1974, [62, 67–69]; and Fisheries Jurisdiction Case (Federal Republic of Germany v Iceland) (Judgment) [1974] ICJ Rep 175, [61 & 77(4)(b)]. 44 Fisheries Jurisdiction Case (United Kingdom of Great Britain v Iceland), ibid., [70–73  & 79(4)(b)]; and Fisheries Jurisdiction Case (Federal Republic of Germany v Iceland), ibid., [61 & 77(4)(b)]. 45 Fisheries Jurisdiction (United Kingdom of Great Britain v Iceland), ibid., [69]; and Fisheries Jurisdiction (Federal Republic of Germany v Iceland), ibid., [61]. 46 For an extensive discussion of State practice on TFRs prior to the adoption of the LOSC, see DW Windley, ‘International Practice Regarding Traditional Fishing Privileges of Foreign Fishermen in Zones of Extended Maritime Jurisdiction’ (1969) 63(3) American Journal of International Law 490; and H Tseng and C Ou, ‘The Evolution and Trend of the Traditional Fishing Rights’ (2010) 53(5–6) Ocean and Coastal Management 270.

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through ‘the non-disturbance and preservation of a continuous, long­ established and accepted situation and the particular realities of a maritime area’.47 Deriving their legal force from general principles of law and State practice, TFRs were generally accepted by the international community under the law existing prior to the adoption of the LOSC. The concept of TFRs was also framed broadly during this period in the sense that there was no distinction as to the nature of the fishing practice or the identity of the fishermen (i.e., the emphasis was on the temporal dimension of the right). Thus, all fishermen – regardless of whether they are industrial, artisanal, or nationals of a remote or neighboring State – who have had a longstanding history of fishing in a certain maritime area before the area was unilaterally included under the exclusive jurisdiction of the adjacent coastal State were entitled to continue their TFRs. 4. TFRs under the LOSC and the jurisprudence of international courts and tribunals As discussed in Chapter 5, the adoption of the LOSC brought about signifi­ cant changes to the traditional law of the sea regime by extending the limits of the territorial sea to 12 nm and recognizing new maritime zones, includ­ ing, inter alia, archipelagic waters and the EEZ. This legal-spatial construc­ tion of ocean space casts doubt as to whether TFRs have survived under the current law of the sea regime, especially within extended territorial seas and newly established EEZs or EFZs. This section explores whether and to what extent TFRs have survived the LOSC regime by analyzing the relevant provisions of the LOSC and the jurisprudence of international courts and tribunals that have dealt with the relationship between existing TFRs and the sovereignty/sovereign rights of a coastal State in the different maritime zones. 4.1 TFRs within archipelagic waters The recognition of archipelagic waters in the LOSC results in the inclusion of previous high seas areas under the sovereignty of the qualifying archipelagic State, which may, in turn, affect pre-existing TFRs. Recognizing this fact, the LOSC imposes an obligation on archipelagic States to recognize and protect the continuity of TFRs within archipelagic waters under Articles 47(6) and 51(1). Article 47(6) provides that: If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighboring State, existing rights 47 S Kopela, Historic Titles and Historic Rights (n 22), 185 & 199. The conclusions of the Gris­ bådarna Arbitral Tribunal and the ICJ (in the cases discussed in this chapter) emphasized this objective of stability.

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and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected.48 Similarly, Article 51(1) provides that ‘[w]ithout prejudice to article 49, an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring States in certain areas falling within archipelagic waters’.49 The application of Article 47(6) is triggered only upon fulfillment of a specific scenario, namely that a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighboring State. Thus, Article 47(6) has a limited application, and there are very few examples where these conditions have been fulfilled. One known example is Indonesia’s archipelagic waters that lie between east and west Malaysia.50 On the contrary, Article 51(1) has a more general application. However, both provisions provide protection for two broad categories of rights and interests. First, they protect all rights and interests of other States that emanate from pre-existing agreements between the archipelagic State and the other State(s) concerned.51 The nature, type, and extent of this cat­ egory of rights is determined by the terms of any pre-existing agreement(s), and this may include fishing rights. Thus, the contents of existing agreements act as reference points for identifying the nature and extent of those rights or interests that the archipelagic State is obliged to respect. The obligation of an archipelagic State to respect existing agreements aims to regulate any pos­ sible conflict between the rights of the archipelagic State under the LOSC and its obligations that emanate from existing agreements.52 This is an exception to Article 311(2) of the LOSC, which deals with the relationship between the Convention and other prior agreements.53 Thus, if a pre-existing agree­ ment establishes more generous rights to third States than the archipelagic State provisions of the LOSC, the former should be respected as a compatible

48 LOSC (n 1), Art 47(6) (emphasis added).

49 Ibid., Art 51(1) (emphasis added).

50 Regarding this point, see RR Churchill, V Lowe, and A Sander, The Law of the Sea, 4th edn

(Manchester University Press 2022) 126; CR Symmons, ‘Article 47 LOSC, Part IV: Archipe­ lagic States’ in A Proelss (ed.), United Nations Convention on the Law of the Sea: A Com­ mentary (Verlag CH Beck oHG 2017) 370. 51 The stipulations of Article 47(6) and Article 51(1) with respect to ‘existing agreements’ is slightly different. While Article 47(6) refers to the existing agreements between an archipe­ lagic State and the immediately adjacent neighboring State(s), Article 51(1) deals with exist­ ing agreements between an archipelagic State and other States irrespective of whether they are neighboring or remote States. 52 Churchill and Lowe, The Law of the Sea (n 50), 125. 53 See Chapter 5 of this book for a detailed discussion.

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inter se agreement.54 Nonetheless, the States concerned are free to modify the existing rights by revising the existing agreement or by concluding a new agreement. The second category of rights relates to ‘existing rights and all other legiti­ mate interests’ traditionally exercised by the adjacent neighboring State(s) within the archipelagic waters of the archipelagic State. This category of rights arises not from existing agreements but from the traditional exercise of those activities by the neighboring State(s) within the waters in question and is automatically protected upon entry into force of the LOSC. The expression traditionally exercised ‘existing rights’ and all other ‘legitimate interests’55 may encompass several rights that include, inter alia, TFRs.56 Indeed, while the recognition of TFRs under Article 47(6) is implicit, Article 51(1) of the LOSC expressly mentions and provides detailed recognition for TFRs of fish­ ermen of neighboring States. Both provisions underscore that the obligation of an archipelagic State to recognize TFRs is limited to the nationals of the immediately adjacent neigh­ boring States and does not extend to other non-neighboring distant water fishing States even though they had traditionally fished in the area. Moreover, the beneficiary fishing communities of the adjacent neighboring States cannot transfer or share the TFRs with third States or share those rights with nation­ als of other States.57 However, the right is internally transferable in the sense that it can pass from generation to generation of the community concerned, as this is a basic characteristic of traditional fishing. Neither Article 47(6) nor Article 51(1) expressly references indigenous peoples or communities, but it is evident that indigenous peoples are amongst those who benefit from the protections extended to traditional fishing practices (as discussed in more detail in Section 5).58 While the archipelagic State’s duty to recognize TFRs arises indepen­ dently of any agreement, Article 51(1) further requires the States concerned to regulate the modalities of the operation of the right – i.e., the terms and

54 R Barnes and C Massarella, ‘Article 51 LOSC, Part IV: Archipelagic States’ in A Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Verlag CH Beck oHG 2017) 385–386. 55 The LOSC provides no guidance as to the meaning of ‘legitimate interests’. However, the term may refer to broader ‘claims that have not crystalized into rights’ (see Reisman and Arsanjani, Some Reflections on the Effect of Artisanal Fishing (n 15), 648, at footnote 43). 56 Respect for existing submarine cables and the freedom of navigation within archipelagic waters are other types of rights covered by the expression ‘existing rights and all other legiti­ mate interests traditionally exercised by other States’ (LOSC (n 1), Arts 51(2) & 52–54). 57 Ibid., Art. 51(1). 58 See EL Enyew and N Bankes, ‘Interaction between the Law of the Sea and the Rights of Indigenous Peoples’ in N Matz-Luck, Ø Jensen, and E Johansen (eds), The Law of the Sea: Normative Context and Interactions with Other Legal Regimes (Routledge 2022) 151, 161–162.

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conditions for the exercise of TFRs, including the nature, extent and areal limit to which the right applies – through bilateral agreements.59 In line with this requirement, Indonesia and Malaysia concluded a bilateral treaty in 1982 to regulate the traditional rights of Malaysia within the archipelagic waters of Indonesia – recognizing that Indonesia’s application of the legal regime of archipelagic States under the LOSC ‘would seriously affect existing rights and other legitimate interests traditionally exercised by Malaysia’.60 The Treaty, inter alia, recognizes and protects the TFRs of Malaysian ‘traditional fishermen’ in a designated ‘Fishing Area’ within the archipelagic waters and the territorial sea of Indonesia lying between East and West Malaysia.61 The Treaty defines ‘traditional fishermen’ as ‘fishermen who, as their basic means of livelihood, are engaged directly in traditional fishing in the designated Fishing Area’ using traditional fishing methods (boats) prior to the applica­ tion of Indonesia’s archipelagic legal regime.62 The Treaty does not provide specific parameters for the permitted traditional fishing boat. Rather, this is broadly defined as ‘any boat owned and used by Malaysian traditional fisher­ men specifically for traditional fishing in the designated Fishing Area’.63 With regard to the content of the right, the Treaty recognizes not only fishing but also other associated rights, such as unimpeded passage for the traditional fishing boats from base stations to the Fishing Area and vice versa, as well as the use of certain Indonesian islands for temporary shelter.64 Thus, the Treaty broadly frames the beneficiaries, the areal limit (including areas within archi­ pelagic waters and the territorial sea), and the material content of the TFRs. In sum, the LOSC makes it unambiguously clear that the allocation of archipelagic waters, which were previously high seas, under the sovereignty of an archipelagic State should not be a bar to the continued exercise of

59 LOSC (n 1), Art 51(1). 60 Treaty between Malaysia and the Republic of Indonesia Relating to the Legal Regime of Archipelagic States and the Rights of Malaysia in the Territorial Sea and Archipelagic Waters as well as in the Air Space Above the Territorial Sea, Archipelagic Waters and the Territory of the Republic of Indonesia Lying Between East and West Malaysia (The 1982 Malaysia/Indo­ nesia Treaty), concluded on 25 February 1982, preamble, recital 3. The text of the Treaty is available at DOALOS, The Law of the Sea: Practices of Archipelagic States (DOALOS 1992) 144–155. Although this bilateral treaty predates the adoption of the LOSC, it was concluded based on the consensus reached at the Third United Nations Conference on the Law of the Sea (UNCLOS III) relating to the legal regime of archipelagic States. This fact is clearly stated in the preamble of the Treaty itself which states that this agreement is concluded with a desire ‘to stipulate and regulate Malaysia’s traditional rights and interests therein as envisaged by the Draft Convention on the Law of the Sea prepared by the Third United Nations Confer­ ence on the Law of the Sea’ (preamble, recital 5) (emphasis added). 61 Ibid., Arts 1(7) & 2(2(e)). The map showing the limits of the delineated traditional ‘Fishing Area’ is attached to the Treaty as Annex II. 62 Ibid., Arts 1(7), 1(8) & 1(9). 63 Ibid., Treaty, Art 1(9). 64 Ibid., Arts 13(1(b)) & 14(1(c)).

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existing non-exclusive TFRs by nationals of the immediately adjacent neigh­ boring States. Thus, archipelagic States must exercise their sovereignty in a manner that respects the TFRs of indigenous peoples. 4.2 TFRs within the territorial sea The LOSC neither expressly recognizes nor rejects the survival of TFRs within the territorial sea. However, Article 15 of the LOSC states that the existence of ‘historic title or other special circumstances’ may justify the delimitation of the territorial sea between States with opposite or adjacent coasts in a way at variance with the median line rule. Existing TFRs may be included in the wider formula of ‘other special circumstances’65 that justifies the adjustment of the equidistance line of delimitation,66 and TFRs are, thus, preserved in such contexts.67 The LOSC does not expressly address the survival of TFRs in the territorial sea outside the context of delimitation of overlapping claims. The absence of an express provision has allowed some States to adopt a position that the LOSC extinguishes TFRs in the territorial sea.68 On the other hand, other States argue that, despite the silence of the LOSC, it is possible to inter­ pret existing provisions in a manner that embraces TFRs.69 Certain arbitral tribunals have dealt with the issue of the continuity of TFRs within the ter­ ritorial sea, and their conclusions provide guidance on the interaction between the sovereignty of coastal states and existing TFRs. These arbitral tribunals include the Eritrea/Yemen Arbitral Tribunal, the Chagos Arbitral Tribunal, and the South China Sea Arbitral Tribunal, all discussed in the following sections. 4.2.1 The award in the Eritrea/Yemen Arbitration Eritrea and Yemen concluded an Arbitration Agreement in 1996, pursuant to which they agreed to solve their conflicting sovereignty claims over the Red Sea Islands through arbitration, which proceeded in two phases.70 In the first

65 The LOSC does not define the term ‘special circumstances’ but commentators argue that the term includes special configuration of coastlines, the presence of small islands or naviga­ tional channels, security matters, or fishery interests. See CR Symmons, ‘Article 15 LOSC, Part II: Territorial Sea and Contigous Zone’ in A Proelss (ed.), United Nations Convention on the Law of the Sea: A Commentary (Verlag CH Beck oHG 2017) 160–163. 66 The Grisbådarna Case (n 37) represents an historical example of cases where non-exclusive TFRs caused an adjustment of the median line of the overlapping territorial sea. 67 See Reisman and Arsanjani, Some Reflections on the Effect of Artisanal Fishing (n 15), 647. 68 States against which TFRs are claimed adopted this line of argument (see the case law dis­ cussed in this chapter). 69 As shown in the discussion of the case law, States which claimed TFRs adopted this position. 70 Arbitration Agreement between the Government of the State of Eritrea and the Government of the Republic of Yemen (Paris, 3 October 1996), Art 2(1), Annexed to the Second Award of the Tribunal.

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phase, the parties mandated the Tribunal to render an award on territorial sovereignty over the disputed Red Sea Islands in accordance with ‘the princi­ ples, rules, and practices of international law applicable to the matter, and on the basis, in particular, of historic titles’.71 In the second phase, the Tribunal was mandated to render an award delimiting the maritime boundary ‘taking into account the opinion that it will have formed on questions of territorial sovereignty [under the first award], the United Nations Convention on the Law of the Sea, and any other pertinent factor’.72 Although the Arbitration primarily concerns the conflict of sovereignty over the Red Sea Islands, the issue of TFRs became an integral part of both awards.73 In the first award, while allocating sovereignty over the various Red Sea Islands to the disputing parties,74 the Tribunal unanimously found that ‘such sovereignty is not inimical to, but rather entails, the perpetuation of the tradi­ tional fishing regime in the region’.75 In its dispositif, the Tribunal specifically held that ‘the sovereignty found to lie with Yemen entails the perpetuation of the traditional fishing regime in the region, including free access and enjoy­ ment for the fishermen of both Eritrea and Yemen’.76 Since this finding is general, the Tribunal, in responding to Eritrea’s request, provided further clarifications in the second award regarding the beneficiaries, the legal basis, substantive content, and spatial extent of the traditional fishing regime.77 In Eritrea’s view, the perpetuation of a traditional fishing regime required establishing joint resource zones to precisely delineate the traditional fishing area where its fishermen might fish,78 as well as the conclusion of a formal agreement describing the details and modalities through which the fishermen of both States may use the shared resources.79

71 Ibid., Art 2(2); Eritrea/Yemen Award, phase I (n 9), [7]. 72 Eritrea/Yemen Arbitration Agreement, ibid., Art 2(3); Arbitration between the Government of the State of Eritrea and the Government of the Republic of Yemen, Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation), Phase II, Lon­ don (17 December 1999), [6]. Even though Eritrea was not a party to the LOSC, the par­ ties, through agreement, authorized the Tribunal to use the Convention’s rules on maritime delimitation as the applicable law. 73 For a general discussion of the awards, see B Kwiatkowska, ‘The Eritrea/Yemen Arbitration: Landmark Progress in the Acquisition of Territorial Sovereignty and Equitable Maritime Boundary Delimitation’ (2000) 8(1) IBRU Boundary and Security Bulletin 66. 74 The Tribunal assigned the islands of Zuqar, Hanish, Jabal al-Tayr, and Zubayr to Yemen, and the Mohabbakah Islands, the Haycock Islands and Southwest Rocks to Eritrea (see Eritrea/Yemen Award, phase I (n 9), [527]). 75 Ibid., [526].

76 Ibid., [527(vi)] (emphasis added).

77 See Eritrea/Yemen Award, phase II, Chapter IV (paras 87–112).

78 Ibid., [27–28]. Eritrea’s proposal for a ‘joint resource zone’ to recognize TFRs is not unique.

Various forms of such an approach have been implemented by different States through bilat­ eral agreements (see Section 6 of this chapter for a detailed discussion). 79 Ibid., [6 & 89].

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Rejecting Eritrea’s claims, the Tribunal held that a ‘traditional fishing regime is not an entitlement in common to resources nor is it a shared right in them’.80 Additionally, its perpetuation does not require any agreement to be negotiated between the parties.81 The regime is one of free access, which entitles both Eritrean and Yemeni fishermen ‘to engage in artisanal fishing around the Islands’ attributed to Yemen.82 Put differently, the traditional fishing regime of free access is ‘preserved for the benefit of the lives and livelihoods of [the] poor and industrious order of men’,83 rather than for the respective States. The Tribunal, thus, unambiguously affirmed that TFRs are private rights where artisanal fishing individuals and communities, as opposed to large-scale industrial fisheries, are the beneficiaries to maintain their lives and livelihoods.84 The Tribunal described the nature of artisanal fishing methods commonly used in the region that qualify the Eritrean and Yemeni artisanal fishing communities to the traditional fishing regime of free access as follows: [B]oth the artisanal vessels and their gear are simple. The vessels are usually canoes fitted with small outboard engines, slightly larger vessels (9–12 m) fitted with 40–75 hp engines, or fishing sambuks with inboard engines. Dugout canoes and small rafts (ramas) are also in use. Hand lines, gill nets and long lines are used.85 The Tribunal, however, recognized that traditional fishing practices do not remain static and are not frozen in time. Rather, they evolve over time in response to subsequent economic changes and societal developments, which involve the incorporation of new ideas and fishing techniques into the exist­ ing traditional knowledge base. The Tribunal emphasized that the term ‘artisanal’ is not to be understood as applying in the future only to a certain type of fishing exactly as it is practiced today . . . It does not exclude improvements in powering the small boats, in the techniques of navigation, communication or in the techniques of fishing.86 Ibid., [103].

Ibid., [111].

Ibid., [103] (emphasis added).

Eritrea/Yemen Award, phase I (n 9), [526] (emphasis added).

This means that Yemen, by virtue of its sovereignty over the islands attributed to it, can

exclude industrial fishing by Eritrean nationals, and both artisanal and industrial fishing by nationals of all third States, or subject their presence to licensing (see Eritrea/Yemen Award, phase II (n 72), [106–107]). 85 Ibid., [105]. 86 Ibid., [106] (emphasis added). In this regard, the Tribunal also held that any measures hav­ ing an impact on the traditional fishing regime, which may include measures relating to the fishing methods, must be mutually agreed between the two States [108]. 80 81 82 83 84

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This approach resonates well with the practice of human rights treaty bodies, which recognize the rights of indigenous peoples to modernize their hunting and fishing tools and methods.87 The Tribunal broadly framed the material content of the traditional fish­ ing regime to cover not only fishing but also the right to use the Islands and its waters for all ‘purposes traditionally associated with . . . artisanal fishing’.88 Such purposes include diving for shells and pearls (carried out by artisanal means);89 the use of the islands for salting and drying fish, way stations, the provision of temporary shelter, and effecting of repairs;90 and the right to enter into the relevant ports of both States and access the fishing markets on a non-discriminatory basis.91 The Tribunal also conceptualized expansively the spatial limit for the exercise of activities encompassed by the traditional fishing regime. It decided that the traditional fishing regime is not limited to the territorial sea of specified islands.92 Rather, the regime has existed ‘throughout the [Red Sea] region’ as a whole, and ‘[b]y its very nature it is not qualified by the maritime zones specified under the United Nations Convention on the Law of the Sea’.93 Thus, the traditional fishing regime operates throughout the waters that the Tribunal decided to have fallen under the exclusive jurisdiction of each of the parties, including inter­ nal waters (ports), the territorial sea, and the EEZ. In so deciding, the Tribu­ nal clearly affirmed that the drawing of an international maritime boundary does not alter the existing traditional fishing regime, nor does the existence of the latter have an impact on the course of the boundary line to be drawn by the Tribunal.94 In reaching the previous findings, the Tribunal stood on two legal bases. The first basis was the notion of respect for local practices or the common legal tradition of the region. The Tribunal emphasized the traditional open­ ness of southern Red Sea Islands for various uses (mentioned previously) by artisanal fishers of both States, which were carried out for centuries without any need to obtain authorizations from, and without restrictions or regula­ tions exercised by, public authorities on either side of the Red Sea.95 Thus,

87 See Chapter 4 of this book for a detailed discussion.

88 Eritrea/Yemen Award, phase II (n 72), [103].

89 Ibid., [103]. The Tribunal excludes the extraction of guano and other minerals more gener­ ally from forming part of the traditional fishing regime on the ground that it has not received sufficient evidence showing that such activities have been traditionally practiced by the arti­ sanal fishers of the two States [104]. 90 Ibid., [103]. 91 Ibid., [66, 69, 107]. 92 Ibid., [109]. 93 Ibid., [109] (emphasis added). 94 Ibid., [110]. 95 Eritrea/Yemen Award, phase I (n 9), [126–128  & 340]; Eritrea/Yemen Award, phase II, ibid., [92].

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according to the Tribunal, ‘what was relevant [in finding the traditional fish­ ing regime] was that fishermen from both of these nations had, from time immemorial, used these islands for fishing and activities related thereto’.96 Such immemorial free-use patterns constitute shared local traditions that should be maintained, respected, and protected by law – despite these bodies of water later being enclosed under the national jurisdiction of each State.97 Thus, the Tribunal’s reasoning affirmed that such long-continued fishing practice constitutes a rule of customary international law of the Red Sea region, or at least a local custom regulating the mutual rights and obligations between the two States.98 The second legal basis is the Islamic heritage of the Red Sea region, which had acquired the status of a regional legal tradition.99 The basic Islamic concept – that ‘all humans are “stewards of God on earth” ’ – confers on artisanal fishers ‘inherent rights to sustain their nutritional needs through fishing from coast to coast with free access to fish on either side and trade the surplus’.100 According to the Tribunal, the traditional fishing activities in the region have been governed by the Islamic legal concepts of the region101 rather than by the western international law principle of territorial sov­ ereignty that has been understood as allowing coastal States to ‘exclude fishermen of a different nationality from its waters’.102 In this regard, the Tribunal stated that: ‘[w]estern ideas of territorial sovereignty are strange to peoples brought up in the Islamic tradition and familiar with notions of territory very different from those recognized in contemporary international law’.103 Thus, the Tribunal found it unnecessary to rely on the Eurocentric concept of sovereignty in the Red Sea Region. Rather, it considered the use and ‘appreciation of regional legal traditions’ paramount to rendering an award that allows the continuation of existing community-based use pat­ terns, in particular, and the re-establishment of peaceful relations between the two States, in general.104 This approach of the Tribunal triggers a question regarding the normative character of Islamic law. In the Tribunal’s view, ‘Islam is . . . endowed with a system of law designed both to protect the collective interest of its subjects 96 Eritrea/Yemen Award, phase II, ibid., [95]. 97 Eritrea/Yemen Award, phase I (n 9), [126]; Eritrea/Yemen Award, phase II, ibid., [95]. 98 The ICJ arrived at a similar conclusion in an analogous case concerning a right to subsist­ ence fishing by nationals of Costa Rica inhabiting a riverbank (the San Juan River) serv­ ing as a border between Costa Rica and Nicaragua (Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) (Judgement) [2009] ICJ Rep 213, [141 & 144]. 99 Eritrea/Yemen Award, phase II (n 72), [94 & 95]. 100 Ibid., [92]. 101 Eritrea/Yemen Award, phase I (n 9), [130]. 102 Eritrea/Yemen Award, phase II (n 72), [95]. 103 Eritrea/Yemen Award, phase I (n 9), [525]. 104 Ibid., [525].

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and to regulate their relations with the outside world’;105 and it has been applied in the customary dispute resolution system of the fishermen of both States by local arbitrators (aq ’il).106 The Tribunal characterized the Islamic legal tradition as a lex pescatoria maintained in the Red Sea region.107 A lex pescatoria constitutes a tertium genus norm (third-type legal order), which forms part of neither national nor international law.108 These types of norms emerge not from States but from the consensual acceptance of all individu­ als or communities (non-State actors) whose activities are governed there­ by.109 Thus, the Islamic heritage of the region was viewed as containing ‘legal rules with a kind of supra-State nature’.110 By concluding that the sovereignty awarded to Yemen ‘respects and embraces and is subject to the Islamic legal concepts of the region’,111 the Tribunal clearly affirmed that Islamic law, like international law, limits the sovereignty of coastal States and requires them to accommodate the private TFRs of artisanal communities. In doing so, the Tribunal looked beyond the western State-centric international law concept of sovereignty to give effect to private artisanal fishing practices which have been conducted in the region for centuries. In sum, the Eritrea/Yemen Tribunal clearly concluded that the powers of a coastal State within the maritime zones that fall under its sovereignty or exclusive jurisdiction are limited or burdened by TFRs. Although the Tribu­ nal’s use of Islamic law as a legal basis may be geographically and culturally limited, leading some to suggest that it cannot be generalized as applicable outside the Islamic world,112 the Tribunal’s use of sources external to Euro­ centric international law may offer a useful methodological approach.113 In short, although the Tribunal failed to analyze TFRs in light of the pertinent provisions of the LOSC, the Award offered a very robust articulation of a vision of TFRs that survived the adoption of the LOSC. Eritrea/Yemen Award, phase II (n 72), [93] (emphasis added).

Eritrea/Yemen Award, phase I (n 9), [337–340].

Ibid., [340].

NSM Antunes, ‘The 1999 Eritrea-Yemen Maritime Delimitation Award and the Devel­ opment of International Law’ (2001) 50 International and Comparative Law Quarterly 299, 306. 109 Ibid., 306; and S Allen, ‘The Jurisprudence of Artisanal Fishing Rights Revisited’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indigenous Peoples in Marine Areas (Hart 2019) 97, 107–108. 110 See NSM Antunes, ibid., 302; and H Thirlway, The Sources of International Law, 1st edn (OUP 2014) 27 & 183. 111 Eritrea/Yemen Award, phase II, [94]. 112 See Y Tanaka, ‘Reflections on the Eritrea/Yemen Arbitration of 17 December 1999 (Second Phase: Maritime Delimitation)’ (2001) 48(2) Netherlands International Law Review 197, 217; and WM Reisman, ‘Eritrea-Yemen Arbitration (Award, Phase II: Maritime Delimita­ tion)’ (2000) 94(4) American Journal of International Law 721, 727–729. 113 See EL Enyew and N Bankes, Accommodating the Traditional Fishing Rights of Indigenous Peoples (n 26). 105 106 107 108

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4.2.2 The award in the Chagos Arbitration Mauritius, including the Chagos Archipelago, was a colony of the UK from 1814 until it gained independence in 1968. As a condition for granting Mau­ ritius full independence, the UK required the detachment of the Chagos Archi­ pelago and sought to retain control over the archipelago as the British Indian Ocean Territory (BIOT)114 in order to allow the United States (US) to establish a joint defense facility on Diego Garcia, the biggest southerly island of the Cha­ gos Archipelago.115 Mauritius’ consent to the detachment of the Chagos Archi­ pelago was negotiated at the 1965 London Constitutional Conference, which culminated in an agreement to its detachment – known as the Lancaster House Agreement of 23 September 1965.116 The UK assumed a series of undertak­ ings in the Lancaster House Agreement (Lancaster House Undertakings) which include, inter alia, a commitment (i) to ensure that fishing rights in the waters of the Chagos Archipelago would remain available to Mauritius; (ii) to return the Archipelago to Mauritius if the need for the defense facilities disappeared; and (iii) to reserve the benefit of any minerals or oil discovered in or around the Archipelago for Mauritius.117 These undertakings constituted the conditions upon which the Chagos Archipelago was separated from Mauritius.118 The immediate cause for the arbitration was the unilateral declaration, in 2010, by the UK of a marine protected area (MPA) around the Chagos Archipelago, which banned any fishing activities in the area.119 Protesting the UK’s action, Mauritius initiated the arbitration and requested the Tribunal to find that the MPA established by the UK was incompatible with the sub­ stantive and procedural obligations owed by the UK to Mauritius under the LOSC, including fishing rights in the territorial sea. Mauritius grounded its claim for fishing rights on Article 2(3) of the LOSC, which provides that ‘[t] he sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law’.120 In Mauritius’ view, the reference to ‘other rules of international law’ protects two sets of rights: namely, fishing rights recognized under the Lancaster House Undertakings and any existing TFRs independent of the Undertakings.121 114 Chagos Arbitration (The Republic of Mauritius v The United Kingdom of Great Britain and Northern Ireland), Arbitral Tribunal Constituted under Annex VII of the 1982 United Nations Convention on the Law of the Sea, PCA, Award on the Merits (18 March 2015), [69]. 115 Ibid., [69–71]. 116 Ibid., [74]. 117 Ibid., [77]. 118 For a detailed discussion, see S Allen, The Chagos Islanders and International Law (Hart 2014), ch 3. 119 For an extended discussion of the facts of the case, see EL Enyew, ‘The Chagos Marine Protected Area Arbitral Award and Its Ruling on Fishing Rights’, JCLOS Blog (JCLOS, June 2015). 120 Chagos Arbitration (n 114), Mauritius’ fourth submission (emphasis added). 121 Ibid., [462].

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Regarding fishing rights that stem from the Lancaster House Under­ takings, the Tribunal observed that the parties had divergent views on the binding nature of the Undertakings as well as on the scope and extent of Mauritius’ fishing rights. The Tribunal rejected the UK’s argument that the Lancaster House Agreement was not intended to be binding and could not have been legally binding as a matter of British constitutional law.122 The Tribunal reasoned that the Lancaster House Undertakings ‘formed part of the quid pro quo through which Mauritian agreement to the detachment of the Chagos Archipelago was procured’.123 The undertakings were essential conditions, without which Mauritius would not have granted its consent. The Tribunal acknowledged that an agreement between the UK and the then non-self-governing territory would not be a binding agreement under international law if Mauritius had remained part of the British Empire. How­ ever, the independence of Mauritius in 1968 ‘had the effect of elevating the package deal reached with the Mauritian Ministers to the international plane and of transforming the commitments made in 1965 into an international agreement’.124 The Tribunal further held that the UK, in its subsequent State­ to-State relations and consistent practices, repeated and reaffirmed the Lan­ caster House Undertakings on multiple occasions, all of which transformed the 1965 Agreement into a matter of international law between the Parties by virtue of the principle of estoppel.125 Accordingly, the Tribunal unanimously found that, as a result of the undertakings made by the UK in 1965 and its repeated subsequent practice, Mauritius holds legally binding rights to fish in the territorial sea surrounding the Chagos Archipelago and that the UK is estopped from denying the binding effect of those undertakings.126 Regarding the scope of Mauritius’ fishing rights, the Tribunal rejected the UK’s argu­ ment that Mauritius’ entitlements are merely privileges rather than enforce­ able rights.127 Whilst acknowledging that Mauritius did not have ‘a perpetual 122 This argument of the UK typically manifests the colonial States’ double standard approach of ‘inclusion-exclusion’ discussed in Chapter 2. 123 Chagos Arbitration (n 114), [421 & 422]. 124 Ibid., [425  & 428] (emphasis added). The dissenting and concurring opinion of Judges Kateka and Wolfrum is clearer on this point. They held that: ‘The style of the negotiations, the report on the negotiations and the subsequent practice confirm [that the Undertak­ ings are binding]. This resulted in a package binding under national law which upon the independence of Mauritius devolved upon the international law level’. See Chagos Arbitra­ tion, ibid., Dissenting and Concurring Opinion of Judge James Kateka and Judge Rüdiger Wolfrum, [84]. 125 Ibid., [429–433, 435, 438–439 & 444]. See also S Allen, ‘The Operation of Estoppel in International Law and the Function of the Lancaster House Undertakings in the Chagos Arbitration Award’ in S Allen and C Monaghan (eds), Fifty Years of the British Indian Ocean Territory: Legal perspectives (Springer 2018) 231, 231–262. 126 Chagos Arbitration, ibid., [448]. The Tribunal also more generally held that the unilateral establishment of the MPA is a violation of international law, [534–536]. 127 Ibid., [411 & 451].

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and absolute right’ to fish since the undertakings impose express limitations on the right,128 the Tribunal decided that Mauritius possesses concrete rights and its vessels were entitled to free licenses to engage in fishing activities within the territorial waters surrounding the Archipelago.129 Nonetheless, the Tribunal did not directly connect the Lancaster House Undertakings with Article 2(3) of the LOSC, holding, by majority vote, that the scope of the reference to ‘other rules of international law’ is lim­ ited to ‘general rules of international law’.130 In the view of the majority, the Lancaster House Undertakings did not form part of general interna­ tional law, and they, therefore, could not generate an obligation on the UK, which could be read into Article 2(3) of the LOSC.131 Yet, the Tribu­ nal acknowledged that general international law requires States to act in good faith in their international relations, and for this reason, the UK was obligated to respect the Lancaster House Undertakings in its dealings with Mauritius regarding the Archipelago’s territorial sea.132 Thus, the Tribunal indirectly gave effect to the Lancaster House Undertakings – recognizing Mauritius’ fishing rights – through the notion of good faith incorporated in Article 2(3).133 Regarding its specific claims on TFRs, Mauritius argued that [e]ven if the UK is the coastal State with respect to the territorial sea adja­ cent to the Chagos Archipelago (which it is not),134 it is subject to an obligation under the Convention to respect historically acquired rights in those waters and in particular – as attested by long and consistent interna­ tional case law – traditional fishing rights.135

128 The limitations are found in the words ‘use their good offices with the US Government’ and ‘as far as practicable’ contained in the Lancaster House Undertakings (ibid., [452]). Hence, the UK retained a discretion to maintain a balance between Mauritius’ fishing rights and the defense needs of the US government which, in turn, may entail restrictions on fishing activi­ ties in waters immediately surrounding Diego Garcia for security reasons, [451 & 452]. 129 Ibid., [451, 452 & 455]. 130 Ibid., [516]. The dissent adopted a broader understanding of the term ‘other rules of inter­ national law’ that encompasses several other extraneous sources of obligations, including the Lancaster House Undertakings. They specifically opined that ‘[b]eing part of interna­ tional law, [the Undertakings] may be read into the [LOSC] to the extent the latter refers to international law’, which includes Article 2(3) (see ibid., Dissenting and Concurring Opinion of Judges James Kateka and Rüdiger Wolfrum, [83, 84 & 94]. See Chapter 6 of this book for a detailed discussion on the scope of the renvoi in Article 2(3). 131 Ibid., [517].

132 Ibid., [517 & 520].

133 For a detailed discussion, see S Allen, The Jurisprudence of Artisanal Fishing Rights Revis­ ited (n 109), 110–112. 134 Since the UK and Mauritius were in dispute as to who is the coastal State that has sover­ eignty over the Chagos archipelago, Mauritius claimed the right to TFRs in the alternative. 135 Memorial of Mauritius on the Merits, [7.9]; Chagos Arbitration (n 114), [415].

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According to Mauritius, ‘even if the Chagos Archipelago was lawfully detached from Mauritius136 .  .  .  , the detachment cannot render void any existing rights of access or use, or other rights related to the exploitation of natural resources’.137 The UK, for its part, argued that TFRs do not apply in maritime zones beyond archipelagic waters. In the UK’s view, the fact that traditional fishing rights are expressly referred to, and protected, to the extent provided for by article 51(1) with respect to archipelagic waters simply serves to highlight the absence of such reference or protec­ tion when it comes to territorial waters (or waters up to 200 nautical miles).138 However, the Tribunal declined to rule on Mauritius’ claim for TFRs. The only reason why the Tribunal considered it ‘unnecessary to address the ques­ tion of whether Mauritius possessed [TFRs] independently of any commit­ ment by the [UK]’ was because it had already found that Mauritius was entitled to fishing rights in the territorial sea based on the Lancaster House Undertakings.139 By this reasoning, the Tribunal acknowledged that the TFRs of the indigenous Chagos Islanders are subsumed within Mauritius’ fish­ ing rights arising from the UK’s Lancaster House Undertakings. This might be because, as Allen argues, ‘the fishing rights expressed in the Lancaster House Undertakings . . . were largely informed by the exercise of traditional fishing activities undertaken in and around the Archipelago by the Chagos Islanders themselves’.140 Nonetheless, the Tribunal’s approach ignored the view that TFRs exist as a matter of customary international law irrespec­ tive of any agreement between the parties (including the Lancaster House Undertakings). Moreover, by subsuming TFRs into Mauritius’ fishing rights, the Tribunal also failed to appreciate that, unlike the latter (which are State rights), TFRs are private rights available to artisanal fishing communities (the Chagos Islanders in this particular case).141 Although the Tribunal’s finding on Mauritius’ fishing rights would enable the Chagos Islanders to engage in their traditional fishing activities within the territorial sea (by virtue of their 136 It is worth mentioning here that the ICJ opined that the detachment of the Chagos Archi­ pelago from Mauritius was unlawful (see Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] General List No 169, [172, 174 & 178]. 137 Memorial of Mauritius on the Merits, [7.10] (emphasis added). See also Chagos Arbitra­ tion (n 114), [414]. 138 Counter Memorial of the UK, [8.33(a)]. 139 Chagos Arbitration (n 114), [456] (emphasis added). 140 S Allen, The Jurisprudence of Artisanal Fishing Rights Revisited (n 109), 111. 141 In fact, Mauritius also failed to frame its submission to the Tribunal making clear that TFRs around the Chagos Archipelago stem from the longstanding fishing practices of the Chagos Islanders. Rather, it generally claimed that it has TFRs in the area.

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Mauritian nationality),142 approaching TFRs in such a way ‘overlooked the customary international law relating to artisanal fishing rights and its signifi­ cance for non-state actors’.143 Simply put, the Tribunal’s approach does not recognize the Chagos Islanders as the right holders, but rather made their TFRs dependent on the good will of the State.144 In this respect, the Cha­ gos Award was regressive when compared with the Eritrea/Yemen Tribunal’s strong endorsement of the rights of artisanal fishing communities. In sum, the Chagos Tribunal indirectly embraced the existence of TFRs within the territorial sea of the Chagos Archipelago. Nonetheless, by confin­ ing itself to the interpretation of the term ‘fishing rights’ as used in the Lan­ caster House Agreement – rather than separately examining the existence or otherwise of TFRs – the Tribunal missed the opportunity to offer guidance with respect to the claim that TFRs, as a vested property right of artisanal fishing communities, as part of the doctrine of vested rights, directly bind a coastal States pursuant to Article 2(3) of the LOSC. As discussed in the next section, the South China Sea Tribunal seized this missed opportunity and ren­ dered an elaborate ruling on the survival of TFRs within the territorial sea. 4.2.3 The award in the South China Sea Arbitration The center of the dispute between the Philippines and China regarding TFRs was the Scarborough Shoal – a geographical feature in the South China Sea characterized by the Tribunal as a rock.145 The waters surrounding Scarbor­ ough Shoal are rich in MLRs and have served as the principal traditional fishing grounds for fishermen from neighboring Asian States, particularly fishermen from the Philippines.146 Despite this fact, however, China took control of the Shoal in 2012 and took several measures that prevented Fili­ pino fishermen from fishing in the surrounding waters. For example, China enacted laws that ban fishing in the area by Filipino fishermen while at the same time increasing the number of Chinese fishing vessels.147 Similarly, China blocked the entrance to the lagoon of Scarborough Shoal by deploy­ ing and anchoring its law enforcement vessels and establishing rope fences across those vessels.148 Effectively, China created a ‘no fishing zone’ in the 142 Upon their forced removal from the Archipelago by the UK government, most of the Chagossians acquired Mauritian nationality while others reside in the Seychelles. 143 S Allen, The Jurisprudence of Artisanal Fishing Rights Revisited (n 109), 111–112. 144 EL Enyew and N Bankes, Accommodating Traditional Fishing Rights of Indigenous Peo­ ples (n 26). 145 South China Sea Arbitration (n 8), [554–556]. As a rock, Scarborough Shoal can generate a territorial sea but not an EEZ or a continental shelf within the meaning of Article 121(3) of the LOSC. 146 Ibid., [761 & 762]. 147 Ibid., [767]. 148 Ibid., [765].

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waters surrounding Scarborough Shoal and prohibited Filipino fishermen from entering the area.149 The Philippines alleged that China had unlawfully prevented Filipino fishermen from pursuing their livelihoods by interfering with their traditional fishing activities in the territorial sea in violation of its obligations under the LOSC.150 The Philippines argued that because of a continuous fishing practice for a long period of time, ‘traditional fishing in the territorial sea of another State is protected by general international law as incorporated through Article 2(3) of the LOSC’.151 In other words, Article 2(3) of the LOSC contains ‘a general rule of international law that requires a [coastal] State to respect long and uninterrupted fishing by the nationals of another State in its territorial sea’.152 The Tribunal recognized that the legal basis for protecting artisanal fishing stems from the notion of vested rights and the understanding that, having pursued a livelihood through artisanal fishing over an extended period, generations of fisher­ men have acquired a right, akin to property, in the ability to continue to fish in the manner of their forebears.153 The Tribunal’s framing of TFRs as vested rights would have been sufficient to conclude that such rights, as customary international law rights, remain undisturbed within the territorial sea of another State. However, the Tribunal further endorsed the protection of TFRs within Article 2(3) of the LOSC, holding that: Traditional fishing rights constitute a vested right, and the Tribunal con­ siders the rules of international law on the treatment of the vested rights of foreign nationals to fall squarely within the ‘other rules of international law’ applicable in the territorial sea [under Article 2(3)].154 Thus, TFRs are entitled to the same protection as other vested rights under ‘other rules of international law’ provided under Article 2(3) of the LOSC, and the failure of a coastal State to recognize the continued exercise of TFRs within its territorial sea is a violation of its obligations under the Convention. 149 Ibid., [767–769]. 150 Ibid., [112 (B)(10)] or Submission No 10. Since both parties claimed sovereignty over the Scarborough Shoal and the issue of sovereignty is not yet settled and could not be resolved by this arbitration, the Philippines’ submission is based on the alternative premise that if China is sovereign over Scarborough Shoal, then China has failed to respect the TFRs of Filipino fishermen within the territorial sea of Scarborough Shoal. 151 Ibid., [777].

152 Ibid., [774–775].

153 Ibid., [798] (emphasis added).

154 Ibid., [808] (emphasis added).

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The South China Sea Tribunal further reiterated in detail the conclusions of the Eritrea/Yemen Tribunal (discussed previously) regarding the right holders, the material scope of the rights, as well as the nature of traditional fishing methods.155 It clarified that TFRs ‘attach to the individuals and com­ munities that have traditionally fished in an area. These are not the historical rights of States, as in the case of historical titles, but private rights’ available to such communities.156 Thus, the Tribunal established that TFRs extend to ‘artisanal fishing that is carried out largely in keeping with the longstanding practice of the community . . . but not to industrial fishing that departs radi­ cally from traditional practices’.157 While recognizing that traditional prac­ tices vary from region to region in keeping with local custom, the Tribunal generally characterizes artisanal fishing to be ‘simple and carried out on a small scale, using fishing methods that largely approximate those that have historically been used in the region’.158 The Tribunal underscored that ‘the methods of fishing protected under international law would be those that broadly follow the manner of fishing carried out for generations: in other words, artisanal fishing in keeping with the traditions and customs of the region’.159 Yet, like the Eritrea/Yemen Award, this Tribunal also recognized improvements in fishing methods to the extent that they do not significantly lose their traditional character.160 Nonetheless, the Tribunal neither specified any precise threshold for adaptation of fishing methods that would qual­ ify as traditional fishing nor did it clarify how and when traditional fishing practices may gradually change with the advent of technology that disquali­ fies entitlements as TFRs. The Tribunal simply authorized the coastal State (within whose waters TFRs are exercised) to make such an assessment, con­ cluding that customary international law [does not] . . . prevent the coastal State from assessing the scope of traditional fishing to determine, in good faith, the threshold of scale and technological development beyond which it would no longer accept that fishing by foreign nationals is traditional in nature.161 This approach gives the coastal State a wide discretion to exclude TFRs. However, the requirement of good faith may serve as a useful tool in prevent­ ing the coastal State from abusing its assessment of the nature of fishing tools and methods.

155 156 157 158 159 160 161

Ibid., [797, 806, 809].

Ibid., [798] (emphasis added).

Ibid., [798].

Ibid., [797].

Ibid., [806] (emphasis added).

Ibid., [809].

Ibid., [809].

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Based on the previous analysis, the Tribunal concluded that the measures taken by China to prevent fishing by Filipino artisanal fishers in the territo­ rial sea of the Scarborough Shoal ‘is not compatible with the respect due under international law to traditional fishing rights’.162 The Tribunal empha­ sized that its conclusions were not predicated on the assumption that either Party had sovereignty over the Shoal. Thus, it clearly acknowledged that it would have reached exactly the same conclusion had the Philippines estab­ lished control over Scarborough Shoal and acted to exclude Chinese fisher­ men engaged in traditional fishing.163 In sum, the South China Sea Tribunal establishes an important norm with respect to the recognition of TFRs within the territorial sea of another State by clearly affirming that such established rights remain protected under the regime established by the LOSC. As Allen rightly observes, the Tribunal’s full endorsement of TFRs as vested rights and its readiness to view them as compatible with the LOSC’s provisions dealing with the territorial sea constitute a profound moment in the interpretative evolution of the LOSC – specifically the renvoi contained in Article 2(3).164 All in all, despite the absence of explicit provisions in the LOSC preserv­ ing TFRs within the territorial sea of another State, the tribunals canvassed in this section have generally affirmed the survival of such rights. While the Chagos Tribunal’s recognition of TFRs is indirect, both the Eritrea/Yemen and the South China Sea Tribunals expressly affirmed the survival of TFRs within the territorial sea even though each followed a different legal (norma­ tive) basis to arrive at their respective findings. The Eritrea/Yemen Tribunal failed to use either the doctrine of vested rights or the LOSC’s referential clause but rather based its findings on the regional legal tradition and Islamic law concepts. On the other hand, the South China Sea Tribunal not only affirmed the doctrine of vested rights as a legal basis for TFRs but also incor­ porated TFRs into Article 2(3) of the LOSC. In so doing, the South China Sea Tribunal viewed the LOSC as an open-textured instrument. The Tribu­ nal’s approach also demonstrates that international tribunals are now more amenable to a holistic reading of the various references to external sources contained in the Convention with a view to absorbing progressive develop­ ments that have occurred in other areas of international law. 4.3 TFRs in the EEZ The LOSC is silent with respect to the survival of TFRs within the EEZ. Arti­ cle 62(3) of the LOSC requires the coastal State to give access to other States to the surplus of its EEZ living resources ‘tak[ing] into account all relevant

162 Ibid., [812].

163 Ibid., [793 & 812].

164 S Allen, The Jurisprudence of Artisanal Fishing Rights Revisited (n 109), 113.

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factors including, inter alia, . . . the need to minimize economic dislocation in States whose nationals have habitually fished in the zone’.165 This pro­ vision not only uses a softer term, ‘habitual fishing’ instead of ‘traditional fishing’, but also regulates a very specific type of access, access to the surplus resources, rather than a right of access that would be conferred by TFRs. Moreover, the final decision in giving such access to any surplus resources remains at the sole discretion of the coastal State concerned,166 and the duty to ‘take into account’ the interests of ‘States whose nationals have habitually fished in the zone’ is far weaker than that imposed by TFRs.167 Thus, the question remains as to whether the LOSC contemplates the continuation of TFRs within the EEZ or purports to reduce them to the limited unilateral discretion-based regime of access to surplus resources pursuant to Article 62. The three arbitral tribunals discussed in the previous section arrived at inconsistent conclusions regarding the respect for TFRs within the EEZ. The Eritrea/Yemen Tribunal recognized the survival of the traditional fishing regime without distinction as to the maritime zones created by the LOSC, thus including the EEZ. The Chagos Tribunal ruled that it had no jurisdic­ tion to consider fishing rights in the EEZ, invoking Article 297(3)(a) of the LOSC, which exempts disputes relating to coastal States’ sovereign rights over the living resources of the EEZ from the compulsory dispute resolution regime.168 Although the Tribunal concluded that the UK has a ‘due regard’ obligation within the EEZ, pursuant to Article 56(2) of the LOSC, it linked this obligation only to the non-fisheries related commitments of the UK under the Lancaster House Undertakings, and to the manner in which the UK conducted itself prior to the declaration of the MPA.169 Thus, the Chagos Tribunal expressed no opinion on the survival of TFRs within the EEZ. In the South China Sea Arbitration, the dispute over TFRs only arose with respect to the territorial sea (as the Scarborough Shoal is a rock capable of generating only a territorial sea), but the Tribunal provided its opinion regarding the issue of whether TFRs survive within the EEZ. The Tribunal concluded that the surplus sharing regime of the EEZ (Article 62(3)) replaces the traditional artisanal fishing regime. For the Tribunal, ‘the inclusion of this provision [Article 62(3)] – which would be entirely unnecessary if traditional fishing rights were preserved in the exclusive economic zone – confirms that 165 LOSC (n 1), Art 62(3) (emphasis added). 166 This surplus-based access right is also subject to several regulatory measures and terms and conditions stipulated by the coastal State pursuant to Article 62(4) of the LOSC (see Chapter 5 of this book for a detailed discussion). 167 See EL Enyew and N Bankes, Accommodating the Traditional Fishing Rights of Indigenous Peoples (n 26). 168 Chagos Arbitration (n 114), [297, 300 & 455]. 169 Ibid., [323(b), 533–535 & 547(A (3(b)))]. Particularly, the Tribunal concluded that the UK violated its ‘due regard’ obligation under Article 56(2) as it failed to sufficiently consult Mauritius before declaring the MPA, [536].

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the drafters of the Convention did not intend to preserve such rights’.170 It fur­ ther reasoned that the exclusive nature of coastal States’ control over fisheries accorded under Part V of the LOSC (i.e., exclusive sovereign rights enjoying immunity from compulsory and binding dispute settlement mechanisms) pre­ cludes the possibility ‘for traditional or artisanal fishing rights to survive the introduction of the exclusive economic zone’.171 Thus, the South China Sea Tribunal held that TFRs survive only to the extent that a coastal State – when giving access to surplus resources – takes such rights into consideration. This conclusion stands in stark contrast with the findings of the Eritrea/ Yemen Tribunal, but the South China Sea Tribunal attributed the difference in conclusion to the different applicable law provisions under which the two tribunals were operating.172 While the ad hoc Eritrea/Yemen Tribunal was mandated to decide in accordance with any types of principles, rules, or prac­ tices of international law, as well as ‘any other pertinent factors’, the South China Sea Tribunal can only apply the provisions of the LOSC and other rules of international law not incompatible with the Convention.173 Thus, according to the South China Sea Tribunal, the Eritrea/Yemen Tribunal was justified in taking a more expansive view of TFRs since it ‘was empowered to – and in the [South China Sea] Tribunal’s view did – go beyond the law on traditional fishing as it would exist under the [LOSC]’.174 This conclusion is unconvincing since the reference to ‘other rules of international law’ under the applicable law provision of the LOSC (Article 293) allows the Tribunal to use customary international law not incompatible with the Convention, including vested rights as TFRs. The Tribunal could also have incorporated TFRs under Article 56(2) of the LOSC, which the Chagos Tribunal suggests are functionally equivalent to Article 2(3) of the LOSC.175 Despite its rejection of TFRs within the EEZ, the South China Sea Tribu­ nal acknowledged that the LOSC does not preclude States from continuing to recognize TFRs within the EEZ ‘in their legislation, in bilateral fisheries access agreements, or through regional fisheries management organizations’.176 It went on to say that although not required by the LOSC, the recognition of TFRs through such other mechanisms ‘would, in most instances, be commendable’.177 Thus, the Tribunal encourages coastal States to continue to recognize and respect TFRs in a wide variety of ways outside the LOSC.

South China Sea Arbitration (n 8), [804(b)] (emphasis added).

Ibid., [803].

Ibid., [259 & 803].

LOSC (n 1), Art 293.

South China Sea Arbitration, (n 8), [259].

See Chagos Arbitration, (n 114), [520]; and S Kopela, ‘Historic Titles and Historic Rights

(n 22), 196. 176 South China Sea Arbitration (n 8), [804(b)]. 177 South China Sea Arbitration, [804(b)]. 170 171 172 173 174 175

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The Barbados/Trinidad and Tobago Arbitral Tribunal and the ICJ, in its 2022 judgment in Nicaragua v Colombia, also dealt with the issue of TFRs in the EEZ, which are discussed in detail in the following sections. 4.3.1 The award in the Barbados/Trinidad and Tobago Arbitration The arbitration between Barbados and the Republic of Trinidad and Tobago concerned the delimitation of the EEZ and continental shelf between the two States.178 Barbados asked the Tribunal to establish a single unified maritime boundary line delimiting the EEZ and the continental shelf of the parties pur­ suant to Articles 74 and 83 of the LOSC, respectively.179 Trinidad and Tobago agreed that the delimitation should be based on the ‘equidistance/special circumstances rule’ in order to achieve an ‘equitable solution’.180 Barbados also requested the Tribunal to give special protection to existing Barbadian traditional artisanal fishing for flying fish – which constitutes an important element of their history, diet, economy, and culture – in certain parts of the waters affected by the delimitation.181 Barbados advanced its claim on two main alternative bases. First, Barbadian traditional artisanal fishing, which has been conducted for centuries, constitutes a special circumstance justify­ ing an adjustment (modification) of the provisional equidistance line so as to afford protection for the fishery.182 Second, if the fishing rights were not protected on the basis of the first ground, Barbados alleged that the Tribunal still had infra petita jurisdiction to award a special fisheries access regime for Barbadian traditional fishers within waters that may become part of Trinidad and Tobago’s EEZ.183 In this respect, Barbados contended that Barbadian tra­ ditional artisanal fishing constitutes an acquired right – which right is neither extinguished by the LOSC nor by general international law – and deserves continued recognition and protection as a non-exclusive use right within the EEZ of Trinidad and Tobago.184 Emphasizing that TFRs are private rights of individuals and communities, Barbados further justified its claim on human rights grounds by invoking relevant human rights instruments, including the Universal Declaration of Human Rights (UDHR),185 the international 178 Arbitration between Barbados and The Republic of Trinidad and Tobago, relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf between them, Arbitral Tribunal Constituted Pursuant to Article 287, and in accordance with Annex VII, of the United Nations Convention on the Law of the Sea, PCA (Award of 11 April 2006). 179 Ibid., [57]. 180 Ibid., [114, 118 & 246]. 181 Barbados/Trinidad and Tobago Arbitration, ibid., [125–128]. 182 Ibid., [133(iv), 135, 141–142 & 247]. 183 Ibid., [72, 149 & 277]. 184 Ibid., [133 (i-iii), 134 & 273]. 185 Universal Declaration of Human Rights, UNGA Res. 217 A, 10 December 1948.

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Covenant on Economic, Social, and Cultural Rights (ICESCR),186 and the American Convention on Human Rights (ACHR).187 The Tribunal ruled that it could only consider the relevant circumstances argument (the first basis for Barbados’ claim) and that it had no jurisdiction to render a decision on the issue of non-exclusive access to traditional fish­ ing within waters that might be determined to form part of Trinidad and Tobago’s EEZ.188 The Tribunal gave two reasons for declining jurisdiction to deal with non-exclusive TFRs. First, the Tribunal held that the scope of the dispute was limited to the drawing of a single line of maritime delimitation, and non-exclusive TFRs neither form part of, nor are they regarded as, a lesser form of relief falling within the scope of the main relief sought.189 Sec­ ond, Article 297(3)(a) of the LOSC excludes disputes concerning EEZ living resources from compulsory and binding dispute resolution mechanisms.190 Regarding the special circumstances argument, the Tribunal concluded that ‘the weight of evidence . . . does not sustain [Barbados’] contention that its fisherfolk have traditionally fished for flying fish off Tobago for centuries’.191 The Tribunal clarified that the period of 1978–1980 – during which Barbados alleged to have introduced the long-range fishing for flying fish – represented a few ‘short years [which we]re not sufficient to give rise to a tradition’.192 The Tribunal did not, however, clarify how many years would be sufficient for recognizing traditional fishing in the disputed area. That was enough for the Tribunal to reject Barbados’ special circumstances argument.193 How­ ever, since the Agent of Trinidad and Tobago expressed before the Tribunal ‘its readiness to negotiate an access agreement with Barbados’,194 the Tribu­ nal held that such commitments bind the State to act in conformity with the terms of the commitment made.195 Accordingly, the Tribunal concluded that Trinidad and Tobago ‘is obliged to negotiate in good faith an agreement with 186 International Covenant on Economic, Social, and Cultural Rights, concluded at New York on 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). 187 American Convention on Human Rights: “Pact of San Jose, Costa Rica”, concluded at San Jose on 22 November 1969, 1144 UNTS 143 (entered into force 18 July 1978). 188 Barbados/Trinidad and Tobago Arbitration, (n 178), [217(iii)]. 189 Ibid., [215]. In this regard, this Tribunal distinguished itself from the Eritrea/Yemen Tribu­ nal’s finding concluding that since the Eritrea\Yemen Tribunal operated in a broad appli­ cable law, ‘it is readily understandable that the [Eritrea\Yemen] Tribunal . . . should make plain that its finding on sovereignty, based on historic title, did not extinguish a pre-existent traditional fishing regime in the region which included a right of access. That is very differ­ ent from saying that a Tribunal has an inherent power to create a right of access by way of a remedy in a delimitation dispute’, [279] (emphasis added). 190 Ibid., [276 & 283].

191 Ibid., [266]. See also [265, 267 & 271].

192 Ibid., [266].

193 Ibid.

194 Barbados/Trinidad and Tobago Arbitration (n 178), [288].

195 Ibid., [291].

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Barbados that would give Barbados access to fisheries within the EEZ of Trinidad and Tobago, subject to the limitations and conditions spelled out in that agreement and to the right and duty of Trinidad and Tobago to conserve and manage the living resources within its jurisdiction’.196 4.3.2 The ICJ’s decision on TFRs in the 2022 Nicaragua v Colombia case The ICJ considered the possible existence of TFRs in its recent decision in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia).197 In this case, Nicaragua alleged that Colom­ bia had violated Nicaragua’s sovereign rights and jurisdiction in the EEZ, which the ICJ declared to fall under the jurisdiction of Nicaragua in its 2012 judgment.198 Colombia counterclaimed, asserting that the inhabitants of the San Andrés Archipelago, particularly the Raizale people, have for centuries practiced artisanal fishing in traditional fishing banks and waters now falling under Nicaragua’s EEZ and that such longstanding practices have given rise to an uncontested customary right of access and exploitation that survived the establishment of Nicaragua’s EEZ.199 Colombia relied on 11 affidavits to prove the existence of a longstanding practice of artisanal fishing and contended that Nicaragua ‘is under an obligation to cease and desist from preventing Colombian artisanal fishermen from accessing their traditional fishing grounds, and to fully respect the traditional, historic fishing rights of the Raizales and other fishermen of the Archipelago to such grounds’.200 For its part, Nicaragua argued that TFRs are incompatible with the EEZ régime as a matter of law201 and even denied that Columbia had adduced reliable evidence to support the claim that the Raizale people have any TFRs in the Nicaraguan EEZ.202 The ICJ dismissed Colombia’s counterclaim on the ground that it had failed to prove the existence of the alleged longstanding fishing practices.203 The Court questioned the weight and probative value of the affidavits submit­ ted by Colombia, holding that it is unrealistic to expect that evidence of what happened centuries ago can be gleaned from the affidavits of contemporary 196 Ibid., [292 & 385(3)].

197 ICJ, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea

(Nicaragua v. Colombia), Judgment, 21 April 2022. 198 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 19 November 2012. 199 ICJ, Alleged Violations of Sovereign Rights, (n 197), [202]. 200 Ibid., [205]. 201 Nicaragua argued that Article 51(1) of LOSC is the only exception that preserves TFRs under Convention. 202 ICJ, Alleged Violations of Sovereign Rights, (n 197), [206, 207]. 203 Ibid., [213, 221].

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fishers, particularly when their culture is not a written one.204 Hence, Colum­ bia had not established with certainty the periods during which such tradi­ tional activities took place or whether there was, in fact, a constant practice of artisanal fishing spanning many decades or centuries.205 The ICJ fur­ ther held that the affidavits were sworn and signed for the purpose of this case and by fishermen interested in the outcome of the proceedings.206 The Court, however, took note of Nicaragua’s willingness, as expressed through statements of President Ortega, to negotiate an agreement with Columbia regarding access by members of the Raizale people to fisheries located within Nicaragua’s EEZ, and further noted that ‘the most appropriate solution to address the concerns expressed by Colombia and its nationals in respect of access to fisheries located within Nicaragua’s [EEZ] would be the negotiation of a bilateral agreement between the Parties’.207 Having dismissed the counterclaim on evidentiary grounds, the ICJ did not deal with whether TFRs are compatible with the EEZ regime as a matter of law. However, the ICJ’s approach might suggest that the Court endorses the view that TFRs could, in principle, survive the creation of an EEZ if sup­ ported by an adequate evidentiary record. After all, it would not be necessary for the Court to engage in the tedious task of examining all the factual evi­ dence presented by Colombia if TFRs could not, as a matter of law, survive the establishment of an EEZ. This line of interpretation is supported by the Declaration of Judge Xue and the dissenting opinion of Judge ad hoc McRae. Judge Xue agreed with the Court’s conclusion on the insufficiency of the factual evidence adduced by Colombia, but unlike the majority, she further considered the legal issue. In her view, there is no legal basis in international law to preclude the existence of TFRs in the EEZ;208 rather, TFRs are recog­ nized and protected under customary international law, and the advent of the régime of the EEZ as set forth in the LOSC does not, in and of itself, extin­ guish such rights that exist under customary international law.209 Regarding the relationship between LOSC and customary international law, Judge Xue clarified that unless TFRs are explicitly negated by the LOSC (treaty law) or new customary rules, they will continue to exist under customary inter­ national law.210 This position is also affirmed in the preamble of the LOSC, which states that ‘matters not regulated by this Convention continue to be governed by the rules and principles of general international law.211 Judge

204 205 206 207 208 209 210 211

Ibid., [221].

Ibid., [220].

Ibid., [218, 219].

Ibid., [232].

Ibid., Declaration of Judge Xue, [7].

Ibid., [2 &9].

Ibid., [10].

Ibid.

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Xue further concluded that the position taken by some States and the con­ clusion of the South China Sea Tribunal that Article 62(3) LOSC replaces TFRs goes too far.212 The ordinary meaning of ‘habitual fishing’ as used in Article 62(3), signifies the temporal aspect of fishing (i.e., fishing in a certain area frequently or for a long time irrespective of whether it is con­ ducted by artisanal or industrial fishers) and, in that sense, may include traditional fishing.213 However, she opined that traditional fishing is dis­ tinct from habitual fishing as it relates not only to the temporal element but also to the inter-generational dimension of the right, which reflects certain cultural patterns, local customs, and traditions.214 Thus, habitual fishing may include certain types of traditional fishing activities carried out by artisanal fishermen, but Article 62(3) does not exhaust all situations relating to TFRs.215 Moreover, Judge Xue observed that the drafting history does not support the view that TFRs were extinguished by the LOSC. At the Third United Nations Conference on the Law of the Sea (UNCLOS III), States held diver­ gent views as to whether a coastal State should enjoy exclusive rights to exploit living resources in the EEZ and to what extent traditional fishing may be maintained.216 In this regard, most States, particularly developing States that were the main proponents of the EEZ regime, rejected the continuity of distant-water commercial fishing practices, particularly of those ‘prescriptive rights’ acquired under colonialism.217 At the same time, such States were sym­ pathetic to the fishing interests of the developing neighboring States whose economy depended on fisheries as well as the continuity of traditional arti­ sanal fishing practices in the waters that would become the EEZ.218 In short, Judge Xue concluded that the text and context of the relevant provisions of the LOSC, the preparatory works, and the jurisprudence all make clear that proven historic fishing rights could survive the creation of the EEZ regime. The dissenting opinion of Judge ad hoc McRae is also instructive regard­ ing the continuity of TFRs in the EEZ. Focusing on the Raizale people, Judge McRae criticized the ICJ for its ‘fail[ure] to appreciate the real nature of the claim relating to the Raizales’219 and for setting such a demanding standard of proof for establishing TFRs that it could never be reached.220 He 212 Ibid., [8].

213 EL Enyew and N Bankes, Accomodating Accommodating Traditional Fishing Rights of

Indigenous Peoples (n 26). 214 ICJ, Alleged Violations of Sovereign Rights (n 197), Declaration of Judge Xue, [2]. 215 Ibid., [8]. 216 Ibid., [4]. 217 Ibid., [5]. 218 Ibid. 219 ICJ, Alleged Violations of Sovereign Rights (n 197), Dissenting opinion of Judge McRae [70]. 220 Ibid., [68].

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emphasized that the Raizale people are indigenous peoples221 having a culture and identity distinct from the other inhabitants of the San Andrés Archipelago, and who ‘navigated, traded, and fished in . . . the Southwestern Caribbean Sea before and after the coming into existence of Nicaragua and Colombia as independent States’.222 Judge McRae considered that the claim of the Raizales to traditional fishing is analogous to an indigenous right, namely, a right that is an inherent consequence of the status of the Raizales as a particular group often described as original or indigenous peoples and that this right is recognized, inter alia, under Article 26 of the UN Declara­ tion on the Rights of Indigenous Peoples (UNDRIP).223 Thus, the indigenous status of the Raizale people demonstrates that they have an intrinsic con­ nection with their traditional marine territories that were subject to Nicara­ gua’s EEZ. Therefore, an independent right exists for the Raizale people (as distinct from the rights of the inhabitants of the San Andrés Archipelago)224 by virtue of their indigenous status, and no additional proof was required beyond the affidavit evidence.225 Judge McRae also disagreed with the ICJ’s conclusion that a negotiated agreement between Nicaragua and Colombia regarding access by the Raizale people to fisheries within Nicaragua’s EEZ would be the most appropriate solution since the purpose of such an agreement should not be to grant (or establish) new fishing rights to the Raizales, but rather to establish the appro­ priate modalities to ensure that the Raizales are able to continue to exercise their existing rights in waters that now fall within Nicaragua’s EEZ.226 Thus, in his view, any call by the ICJ for the conclusion of an ‘implementing agree­ ment’ should have been prefaced with an affirmation of the TFRs of the Raizale people. McRae opined that if the ICJ had characterized the claims of the Raizale people as analogous to claims of indigenous rights, it would have reached a different conclusion – a conclusion affirming the TFRs of the Raizale people. In short, while the ICJ did not reject the idea that TFRs might survive the adoption of an EEZ, it failed to make clear its position on the compatibility of TFRs in the EEZ. By contrast, both the detailed declaration of Judge Xue and the dissenting opinion of Judge ad hoc McRae, affirming the survival of 221 In its Counter-Memorial [2.64], Colombia identified the Raizale people as ‘descendants of the enslaved Africans and the original Dutch, British and Spanish settlers’ which ‘have acquired through the centuries their own specific culture’. 222 ICJ, Alleged Violations of Sovereign Rights (n 197), Dissenting opinion of Judge McRae, [56]. See also Rejoinder of Colombia, [5.10]. 223 Ibid., [65, 70]. See also United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), UN General Assembly Resolution 61/295 (adopted 13 September  2007), Art 25. 224 Ibid., [53, 70]. 225 Ibid., [66, 68]. 226 Ibid., [70, 71].

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TFRs in the EEZ, illustrate how the continuation of TFRs might be recon­ ciled with the positive norms of the LOSC articulating the EEZ. All in all, the compatibility of TFRs with the legal regime of the EEZ remains open. The text of the LOSC is silent. The jurisprudence of the ICJ and arbitral tribunals appears to be inconsistent. The position of legal schol­ ars is also divided. Some commentators support the view that, in the absence of bilateral arrangements, TFRs have been extinguished, arguing that Part V of the LOSC was drafted in a manner that grants priority to the economic rights of coastal States in their EEZ – priority that supersedes any fishing rights that may be claimed by nationals of other States.227 Other commenta­ tors argue in favor of the preservation of TFRs within the EEZ. These com­ mentators claim that if a coastal State can be obliged to recognize TFRs in the territorial sea (a maritime zone important for economic and security reasons and over which a coastal State exercises sovereignty), then the case for rec­ ognizing TFRs in the EEZ should be even easier to make since the EEZ is a hybrid maritime zone more distance the shore of the coastal State and over which it exercises limited sovereign rights rather than sovereignty.228 All of this said, it is, however, clear that the LOSC does not preclude coastal States from recognizing and protecting TFRs within the EEZ by mutual agreement; furthermore, State promises to do so, especially when made in the course of litigation, should be respected and fulfilled.229 5. Indigenous peoples as beneficiaries of TFRs The concept of TFRs is evolutive in the sense that the nature of fishing practices and the right holders/beneficiaries have changed significantly over time. As discussed in Section 3, in the pre-LOSC regime, all types of tradi­ tional fishermen, irrespective of the scale and nature of the fishing practice (regardless of whether it is large- or small-scale, for commercial or subsist­ ence purposes),230 were regarded as the beneficiaries of TFRs. Nonetheless, after the adoption of the LOSC, the beneficiaries of TFRs have been limited to artisanal fishermen of the adjacent or opposite neighboring States, and a coastal State has no obligation to recognize the TFRs of commercial vessels 227 For example, the following scholars support this view. L Bernard, ‘The Effect of Historic Fishing Rights in Maritime Boundaries Delimitation’, Securing the Ocean for the Next Generation (LOSI Conference Papers 2012); and H Tseng and C Ou, ‘The Evolution and Trend of the Traditional Fishing Rights’ (2010) 53(5–6) Ocean  & Coastal Management 270, 275. 228 S Kopela, Historic Titles and Historic Rights (n 22), 195–196; Reisman and Arsanjani, Some Reflections on the Effect of Artisanal Fishing (n 15), 652. 229 EL Enyew and N Bankes, Accommodating Traditional Fishing Rights of Indigenous Peo­ ples (n 26). 230 For example, the TFRs recognized both by the Grisbådarna Tribunal and the ICJ in the Fisheries Jurisdiction Cases are commercial fishing practices.

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Law of the sea and the rights of indigenous peoples

and distant water fishing fleets even if they traditionally fished in a certain marine area.231 This evolution emphasizes not only the temporal but also the inter-generational dimension of TFRs and aims to protect the ways of life of communities having special traditional and cultural attachments to the maritime area in question. In this regard, the South China Sea Tribunal concluded that the ‘attention paid to traditional fishing rights in international law stems from the recognition that traditional livelihoods and cultural pat­ terns are fragile in the face of development and modern ideas of interstate relations and warrant particular protection’.232 The Tribunal made clear that the preservation of the vulnerable traditional livelihoods of artisanal fishing communities is the underlying rationale for the recognition of and respect for TFRs. Put simply, TFRs are today linked with the rights of communities who use artisanal fishing practices to pursue their livelihood and exercise their tra­ ditions, spiritual activities, and customs – values that enable the community to continue to exist as a distinct group.233 In light of this rationale, coastal indigenous peoples lie at the center of the recognition and protection of TFRs since they have strong cultural, communal, and inter-generational attachment to particular marine areas. Although the provisions of the LOSC relevant to the recognition of TFRs and the arbitral awards (discussed previously) do not expressly reference indigenous peoples, those provisions and the findings of the respective tri­ bunals are certainly relevant to the recognition of TFRs of indigenous peo­ ples insofar as they all engage in protecting traditional artisanal use rights. The fishing practices of most, if not all, coastal indigenous communities fall within the category of artisanal or small-scale fishing234 and, therefore, ‘artisanal fisheries by indigenous peoples who are culturally or ethnically distinct or at least geographically isolated from the general population of the states concerned’ are protected under the law of the sea.235 Indeed, the term ‘traditional’ in the context of TFRs refers, inter alia, to communities that are not part of mainstream society and which are regarded as ‘back­ ward’, ‘primitive’, or ‘uncivilized’ – primarily referring to indigenous com­ munities.236 Thus, despite the absence of an express mention of indigenous communities, the nature, intent, and purpose of indigenous fishing prac­ tices (i.e., small-scale, undertaken mostly for subsistence, traditional, and 231 232 233 234

This is confirmed by the arbitral awards discussed in Section 4 of this chapter.

South China Sea Arbitration (n 8), [794] (emphasis added).

See S Allen, The Jurisprudence of Artisanal Fishing Rights Revisited (n 109), 101.

FAO, The Code of Conduct for Responsible Fisheries and Indigenous Peoples: An Opera­ tional Guide (FAO 2009) 2. 235 BH Oxman, ‘Political, Strategic, and Historical Considerations’ in JI Charney and LM Alexander (eds), International Maritime Boundaries, Vol II (Martinus Nijhoff 1993) 38. Allen (S Allen, The Jurisprudence of Artisanal Fishing Rights Revisited (n 109), 97–98 & 120) shares this point of view. 236 Campbell and Wilsen, The Politics of Exclusion (n 27), 74.

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cultural purposes), as well as the underlying rationale for the protection of such TFRs (i.e., to preserve the fragile traditional livelihoods and cultural values associated with fishing), are relevant factors in qualifying coastal indigenous communities as beneficiaries of TFRs under the regime estab­ lished by the LOSC. Given the special legal status of indigenous peoples in contemporary international law, TFRs of indigenous communities are further supported by international human rights law. Müllerson observes that although human rights standards were not developed when international law started pro­ tecting acquired rights, the situation has now changed, and various human rights law instruments play a significant role in recognizing TFRs.237 It is a well-established rule that coastal States are obligated to recognize the human rights of all persons (individuals as well as communities) within their terri­ tory or subject to their jurisdiction, irrespective of ‘their nationality or state­ lessness’.238 This implies that relevant human rights norms require a coastal State to respect the TFRs of neighboring indigenous communities conducted within waters under the jurisdiction of such a coastal State. Reisman and Arsanjani observe that ‘if traditional artisanal fishing rights belong to indi­ viduals [and communities], human rights treaties that prohibit the depriva­ tion of property would act to prohibit governments from taking [or denying] those traditional artisanal fishing rights’.239 Article 14(1) of the ILO Conven­ tion 169, which protects the rights of nomadic indigenous communities ‘to use lands [and marine areas] not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activi­ ties’, is particularly relevant in this context. Article 25 of the UNDRIP, which obliges States to recognize the rights of indigenous peoples to ‘maintain and strengthen their distinctive spiritual [and cultural] relationship with their traditionally . . . used lands, territories, waters and coastal seas and other resources’ is equally important.240 The same is true with respect to other relevant human rights norms. For example, the right to non-discrimination requires a coastal State not only to recognize TFRs of indigenous communi­ ties in the same manner as non-indigenous artisanal fishermen but also to provide special measures geared towards their protection.241 Similarly, the coastal State may be required to consult the concerned indigenous

237 R Müllerson, International Law, Rights and Politics: Developments in Eastern Europe and the CIS (Routledge 1994) 156. 238 HRC, General Comment No 31, ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, CCPR/C/21/Rev.1/Add. 13 (2004), [10]. 239 Reisman and Arsanjani, Some Reflections on the Effect of Artisanal Fishing (n 15), 660. 240 Within the broader meaning of ‘land’ (see Chapter 4), Articles 14(1) and 25 of UNDRIP (n 223) should apply to the TFRs of sea nomadic indigenous communities within the mari­ time zones of neighboring States. 241 See Chapters 3 and 4 on this point.

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Law of the sea and the rights of indigenous peoples

communities (or the State of their nationality) before taking measures that may affect their TFRs, such as restrictions on the type and amount of catch or on specific fishing methods. In the Barbados/Trinidad and Tobago Arbitration, Barbados raised detailed human rights-based arguments with respect to the rights of its traditional fishermen for flying fish within the EEZ of Trinidad and Tobago. Barbados stressed that ‘the entitlement to pursue traditional live­ lihoods is recognized . . . as a matter of individual [or communal] human rights and is confirmed in human rights treaties’.242 It asserted that ‘fishing rights are a form of property’ protected under property rights provisions of the UDHR and the ACHR.243 Additionally, Barbados asserted that such fishing rights are afforded further protection under the right to work and sustain oneself pursuant to Articles 6, 7, and 8 of the ICESCR.244 It fur­ ther argued that ‘[t]he text of the [LOSC], construed in light of general principles, customary law and international human rights law, clearly sup­ ports [Barbados’] claim that artisanal fishing rights survive the conven­ tional reclassification of maritime zones formerly part of the high seas’.245 Accordingly, Barbados requested the Tribunal ‘to take into account pro­ visions of international human rights law, in particular that of the Latin American region’.246 While the Tribunal declined to rule on the issue due to a lack of jurisdic­ tion to deal with TFRs in the EEZ, it did not however deny the relevance of human rights law in the construction of the rules of the LOSC pertaining to TFRs. Similarly, even though both the Eritrea/Yemen and the South China Sea Tribunals did not use the term ‘human rights’ to recognize TFRs, they clearly understood that these community-based entitlements arise not only from the LOSC but also from sources outside the Convention. The language that the Tribunals used to recognize such entitlements demonstrates a clear concern for the welfare of artisanal fishing communities that is fully consist­ ent with the values underlying human rights law.247 Indeed, the dissenting opinion of Judge McRae in the ICJ’s judgment on Nicaragua v Colombia (discussed previously) justified the recognition of the TFRs of the Raizale 242 Memorial of Barbados, 30 October  2004, available at: www.pcacases.com/web/sendAt­ tach/1070 (accessed September 2023), [126]. 243 Ibid., [126] and the accompanying footnote. 244 Reply of Barbados, 9 June  2005, available at: www.pcacases.com/web/sendAttach/1119 (accessed September 2023), [415] including footnote 561). Barbados invoked neither the ILO Convention 169 because both States did not ratify it, nor the UNDRIP as it had not been adopted by the time the case was under arbitration. 245 Ibid., [397  & 410]. Barbados further stressed that ‘[a]rtisanal rights .  .  . now receive a particular solicitude in international law because of its modern emphasis on the rights of individuals [and communities]’ (Reply, [407]). 246 Barbados/Trinidad and Tobago Arbitration (n 178), [137] (emphasis added). 247 NSM Antunes, The 1999 Eritrea-Yemen Maritime Delimitation Award (n 108), 316.

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people on the grounds of their indigenous status – being a people distinct from the other inhabitants of the San Andrés Archipelago.248 In fact, the primary beneficiaries of TFRs recognized in the Chagos Arbi­ tration – the Chagos Islanders also known as the Ilois – are indigenous peoples with a distinct socio-cultural identity who occupied the Chagos Archipelago before the UK acquired derivative sovereignty from France.249 Thus, although international arbitral tribunals have used the terms ‘artisanal’ or ‘small-scale’ fishers rather than indigenous peoples, the latter are also the proper holders of TFRs. The next section explores how certain State bilateral practices recognize the TFRs of indigenous peoples in the different maritime zones. 6. State practice on bilateral maritime boundary delimitation agreements dealing with TFRs of indigenous peoples The LOSC encourages States to delimit their overlapping maritime claims, in the first instance, through mutual agreement on the basis of international law.250 The important issue in this context is whether and how States accom­ modate (take into account) the TFRs of indigenous peoples in negotiating such maritime boundary delimitation agreements. This section explores State bilateral maritime boundary agreements that provide different mechanisms to recognize and protect the TFRs of indigenous peoples on the other side of the agreed maritime boundary.251 6.1 The 1974 memorandum of understanding between Australia and Indonesia and its amendment Australia’s unilateral extension, in 1968, of its maritime zone from a 3 nm territorial sea to a 12 nm EFZ had the effect of denying access to fishing grounds traditionally used by Indonesian fishermen.252 In response, Australia

248 ICJ, Alleged Violations of Sovereign Rights (n 197), Dissenting opinion of Judge McRae, [53, 66, 69 and 70]. 249 See S Allen, The Chagos Islanders and International Law (Hart 2014) 276. 250 LOSC (n 1), Arts 15, 74 & 83. 251 This author uses the International Maritime Boundaries Series, the database of the Limits in the Seas-US Department of State, and Sovereign Limits: International Boundaries Database as the main sources of relevant bilateral maritime boundary agreements. The State practices explored in this section relate only to the Indo-Pacific region. The State practices in other regions are not discussed due to limited space. 252 N Stacey, ‘Crossing Borders: Implications of the Memorandum of Understanding on Bajo Fishing Activity in Northern Australian Waters’, paper presented at the symposium entitled Understanding Cultural and Natural Heritage Values and Management Challenges of the Ashmore Region (Darwin, 4–6 April 2001) 4.

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and Indonesia concluded a Memorandum of Understanding in 1974 (the 1974 Australia-Indonesia MOU or MOU)253 to provide a special arrange­ ment for Indonesian traditional fishermen to access Australia’s EFZ and the continental shelf adjacent to the Australian mainland and offshore islands in the Timor Sea. The MOU defines ‘traditional fishermen’ as those ‘fisher­ men who have traditionally taken fish and sedentary organisms in Australian waters by methods which have been the tradition over decades of time’.254 The definition embraces two main cumulative criteria to identify the benefi­ ciary groups: the historical continuity of the fishing practice and the use of traditional methods (fishing technology). The MOU does not further clarify these elements. The subsequent amendment to the MOU (discussed further on in more detail) explains the second criterion, stating that traditional meth­ ods do ‘not include fishing methods or vessels utilizing motors or engines’.255 This view freezes the notion of ‘traditional’ fishing practices at a particular time in the past – the phrase ‘over decades of time’ in the MOU refers to a minimum of two decades prior to the signing of the MOU. By not clarifying the first criterion, the parties seem to place a strong emphasis on the nature of the fishing method rather than on the historic nature of the fishing practice. As Fox and Sen put it, ‘the issue, in effect, ceases to be a question of who may have traditional rights and, instead, becomes one of who has a traditional perahu [or boat]’.256 This has undermined the very essence of TFRs – recog­ nizing the historic and continuing cultural and economic association with specific fishing grounds.257 The fishermen who qualify as traditional Indonesian fishermen are allowed to continue fishing for traditionally taken MLRs (both surface and seden­ tary), including Trochus, sea cucumber (beche de mer), abalone, green snails, sponges, and all mollusks;258 to use the relevant islands as a shelter for their vessels; and to land on certain Islets of Ashmore Reef to obtain supplies of 253 Memorandum of Understanding between the Government of Australia and the Govern­ ment of the Republic of Indonesia Regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Exclusive Fishing Zone and Continental Shelf, signed at Jakarta on 7 November 1974 (the 1974 Australia-Indonesia MOU), (entered into force 1 February 1975). 254 Ibid., [1] (emphasis added). 255 Practical Guidelines for Implementing the 1974 MOU, Annexed to the Agreed Minutes of Meeting between Officials of Australia and Indonesia on Fisheries (Jakarta, 29 April 1989), [1]. 256 JJ Fox and S Sen, A Study of Socio-Economic Issues Facing Traditional Indonesian Fishers Who Access the MOU Box: A Report for Environment Australia (Environment Australia October 2002) 11. 257 N Stacey, Boats to Burn: Bajo Fishing Activity in the Australian Fishing Zone (ANU E-Press 2007) 188. 258 The 1974 Australia-Indonesia MOU does not distinguish between fishing for subsistence or commercial purposes as long as the fishing is practiced in compliance with the criteria stipulated in the Memorandum.

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fresh water and visit grave sites.259 These traditional activities are permitted only within a specific area of Australia’s EFZ identified in the agreement – known as the ‘MOU Box’, this is a rectangular-like area of the EFZ which includes Ashmore Reef, Cartier Islet, Scott Reef, Seringapatam Reef, and Browse Islet.260 Australia and Indonesia extended their fisheries jurisdiction from 12 to 200 nm in 1979 and 1980, respectively, thereby creating overlapping fisher­ ies claims.261 This led the States to agree on a provisional fisheries surveillance and enforcement line in 1981, which goes beyond the MOU Box.262 Australia also established the Ashmore Reef National Nature Reserve in 1983, which lies within the MOU Box.263 These developments triggered the two States to engage in further arrangements and to adopt Practical Guidelines (an amend­ ment to the MOU) in order to update and improve the implementation of the 1974 Australia-Indonesia MOU.264 In the amendment, Australia agreed to recognize the rights of traditional Indonesian fishermen to access and conduct traditional fishing activities in an expanded area beyond the initial MOU Box (Expanded MOU Box) – an area covering parts of the territorial sea and the EEZ of Australia.265 However, as Stacey observes, the adjustment of the ‘MOU Box’ does not embrace all fishing grounds traditionally used by Indonesian fishermen; certain fishing grounds remain outside the adjusted MOU Box.266 Apart from maintaining the status quo that traditional fishing should be conducted using traditional methods and vessels (as defined previously),267 the Practical Guidelines also introduced other restrictions. Because of their protected status under CITES (to which both States are parties), the taking of turtles, dugongs, and clams is prohibited within the entire MOU Box.268 Similarly, all fishing activities within the Ashmore Reef Nature Reserve are 259 The 1974 Australia-Indonesia MOU (n 253), [2, 3 & 4]. 260 Ibid., [2]. For an illustrative map of the MOU Box, see Fox and Sen, ‘An area in the Austral­ ian Exclusive Economic Zone known as MoU Box’, 2002, available at: www.researchgate. net/figure/An-area-in-the-Australian- Exclusive-Economic-Zone-known-as-MoU-Box-Fox­ and-Sen-2002_fig1_330418437 (accessed September 2023). 261 Agreed Minutes of Meeting between Officials of Australia and Indonesia on Fisheries (Jakarta, 29 April 1989), [2]. 262 Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Australia Concerning the Implementation of a Provisional Fisheries Sur­ veillance and Enforcement Arrangement, Signed at Jakarta on 29 October 1981 (entered into force 1 February 1982). 263 Agreed Minutes of Meeting (n 261), [3].

264 Practical Guidelines for Implementing the 1974 MOU (n 255).

265 Ibid., [2]. The description of the geodetic coordinates of the Expanded MOU Box is

annexed to the Agreed Minutes of Meeting (n 261), Annex I. 266 N Stacey, Boats to Burn (n 257), 182. 267 Practical Guidelines for Implementing the 1974 MOU (n 255), [1]. 268 Ibid., [4]. See also JJ Fox and S Sen, A Study of Socio-Economic Issues (n 256), 10.

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prohibited subject to the consideration of ‘some subsistence fishing’.269 In this regard, Australia adopted a management plan for the nature reserve where it introduced special permits for traditional Indonesian fishers to harvest fish within the reserve but only for ‘immediate consumption’.270 Thus, while the Practical Guidelines made limited spatial adjustments to the initial MOU Box, the Guidelines also introduced a number of restrictions. Subsequently, Australia and Indonesia concluded an agreement on general fisheries coop­ eration in 1992271 and an agreement on the delimitation of their EEZ and seabed boundaries of the Timor Sea in 1997.272 However, neither of these agreements made any change to the existing TFRs’ arrangement. Rather, these agreements have simply reaffirmed the existing spatial extent of the MOU Box and the continued operation of the regulatory rules of the MOU as amended by the Practical Guidelines.273 In sum, the 1974 Australia-Indonesia MOU recognizes, subject to certain conditions, the continued exercise of TFRs by Indonesian fishermen within a specific area of Australia’s waters. This entitlement includes indigenous fisher­ men who have traditionally fished within the MOU Box, such as the Rotenese, the Madurese, the Bajau Latu (Bajo), and the Butonese fishing communities.274 Yet, the conditions of access to the MOU Box have become tighter after the 1989 amendment. Insistence on the use of traditional fishing methods restricts adaptation to modern technologies and fails to appreciate cultural dynamism – denying traditional fishermen the opportunity to adapt to changing socio­ economic circumstances. Further, the 1974 Australia-Indonesia MOU and its amendment do not include mechanisms for participation and continued con­ sultation of the traditional fishermen on matters that may affect them.

269 Ibid., [3]. Australia also established the Cartier Island Marine Reserve in 2000, which has resulted in further restrictions on the TFRs of Indonesian fishermen. 270 Commonwealth of Australia, Ashmore Reef National Nature Reserve and Cartier Island Marine Reserve Management Plans (Environment Australia 2002) 40 & 43, available at: www.environment.gov.au/system/files/resources/55d0d69d-efa7-4497-9974-7aa2cec 7d992/files/cartier-plan.pdf (accessed September 2023). 271 Agreement between the Government of Australia and the Government of the Republic of Indonesia Relating to Cooperation in Fisheries (the 1992 Agreement on Fisheries Coopera­ tion), signed at Jakarta on 22 April 1992. 272 Treaty between the Government of Australia and the Government of the Republic of Indo­ nesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, signed at Perth on 14 March 1997 (not yet entered into force). See also V Prescott, ‘Aus­ tralia – Indonesia, Report Number 6–2(6)’ in JI Charney and RW Smith (eds), International Maritime Boundaries, Vol IV (Martinus Nijhoff 2002) 2697–2727. 273 See The 1992 Agreement on Fisheries Cooperation (n 271), preamble, recital 6; and the 1997 Treaty on Delimitation of the EEZ and Seabed Boundaries (n 272), preamble, recital 5. 274 See International Working Group for Indigenous Affairs (IWGIA), available at: www.iwgia. org/en/indonesia (accessed September  2023); and II Hadiprayitno, ‘The Limit of Narra­ tives: Ethnicity and Indigenous Rights in Papua, Indonesia’ (2017) 24(1) International Journal on Minority and Group Rights 1.

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6.2 The Torres Strait Treaty After Papua New Guinea (PNG) acquired its independence from Australia in 1975, the two States concluded a bilateral treaty, commonly known as the Torres Strait Treaty, to establish their maritime boundaries and determine the extent of their respective sovereignty and jurisdiction over the waters and islands of the Torres Strait region.275 The Treaty establishes two main boundary lines: the seabed jurisdiction line276 and the fisheries jurisdiction line.277 Australia has sovereign rights to all resources on or below the sea­ bed south of the seabed jurisdiction line as well as rights over all fishery resources, other than sedentary species, south of the fisheries jurisdiction line.278 PNG has identical rights north of such jurisdiction boundary lines.279 The establishment of these maritime boundaries would inevitably disrupt longstanding social relations between coastal communities on both sides of the boundary and restrict access to their traditional marine territories and resources. Responding to this concern, the States parties devised a novel approach to recognize and protect the traditional ways of life and liveli­ hoods of the traditional inhabitants within waters falling under each other’s maritime jurisdiction. The Treaty establishes a Protected Zone (PZ) ‘com­ prising all the land, sea, airspace, seabed and subsoil’ of a defined area of the Torres Strait, which covers maritime areas falling under the national jurisdiction of both States.280 Since the principal purpose of the PZ is to protect traditional rights,281 it embraces all the waters, islands, and other maritime features where the tra­ ditional inhabitants from both sides maintain their traditional lifestyles and livelihoods.282 Yet, recognizing the possibility that traditional activities may extend beyond the boundaries of the PZ, the Treaty also requires State parties 275 Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters (Torres Strait Treaty), signed at Sydney on 18 December 1978 (entered into force 15 February 1985), preamble, recital 1. 276 Ibid., Art 4(1). Although the seabed jurisdiction line is considered the main boundary between Australia and PNG as far as sovereignty over islands is concerned, Australia main­ tains sovereignty over certain islands (listed under Article 2(1)) north of that line. 277 Ibid., Art 4(2).

278 Ibid., Arts 1(1(b) & (i)), 2(1) & 4(1)(2).

279 Ibid., Arts 1(1(b) & (i)), 2(3) & 4(1)(2).

280 Ibid., Art 10. Annex 9 to the Treaty provides a detailed description of the boundaries of

the PZ. For an illustrative map of the PZ, see ‘The Torres Strait Treaty: boundary delimi­ tation and protected zone. 49’, available at: www.researchgate.net/figure/The-Torres­ Strait-Treaty-boundary-delimitation-and-protected-zone-49_fig1_228321954 (accessed September 2023). 281 The secondary purpose of the PZ is ‘to protect and preserve the marine environment and indigenous fauna and flora in and in the vicinity of the protected zone’ (Art 10(4)). 282 SB Kaye, ‘Jurisdictional Patchwork: Law of the Sea and Native Tittle Issues in the Torres Strait’ (2001) 2(2) Melbourne Journal of International Law 381, 391.

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to recognize those activities ‘in the vicinity of’ the PZ.283 Nonetheless, since the Treaty does not define the term ‘vicinity’, State parties have wide dis­ cretion to determine the spatial extent in actually implementing traditional rights. The Treaty defines ‘traditional inhabitants’ as citizens of Australia and PNG who live in the PZ and the adjacent coastal areas, respectively, and who ‘maintain traditional customary associations with areas or features in or in the vicinity of the protected zone in relation to their subsistence or livelihood or social, cultural or religious activities’.284 The Torres Strait Islander indig­ enous communities who live inside the PZ and citizens of PNG who live in coastal areas adjacent to the Torres Strait are the beneficiaries of this special treaty scheme. For further clarity, the State parties have recently agreed on the list of villages of ‘traditional inhabitants’ from both sides who are entitled to the special privileges of the Treaty.285 The qualified traditional inhabitants are allowed to continue exercising customary rights of access to and usage of the islands and waters within or adjacent to the PZ for the purpose of pursuing their traditional activities.286 The Treaty broadly defines ‘traditional activities’ as any ‘activities performed by traditional inhabitants in accordance with local tradition’.287 These tra­ ditional activities include, inter alia, activities on land, such as gardening, collection of food, and hunting; activities on the water, including traditional fishing; religious and secular ceremonies or gatherings for social purposes, such as marriage celebrations, settlement of disputes, barters, and market trades in traditional objects;288 and ‘free movement’ in connection with the conduct of all of these traditional activities.289 Each State party is obliged to permit the exercise of these activities in and in the vicinity of the PZ by the traditional inhabitants of the other party ‘on conditions not less favourable than those applying to like rights of its own traditional inhabitants’.290 Of the previously-mentioned traditional activities, the Torres Strait Treaty pays particular attention to ‘traditional fishing’, which is defined as the tak­ ing of ‘living natural resources of the sea, seabed, estuaries and coastal tidal areas’ by traditional inhabitants ‘for their own or for their dependents’ con­ sumption or for use in the course of other traditional activities’.291 The Treaty permits traditional inhabitants of both States to freely fish anywhere within the PZ without restriction on the types of MLRs that could be caught, 283 Torres Strait Treaty (n 275), Art 1(3).

284 Ibid., Art 1(1(m)).

285 For the list and map of these villages, see Guidelines for Traditional Visitors at: www.dfat.

gov.au/sites/default/files/torres-strait-guidelines.pdf (accessed September 2023). 286 Torres Strait Treaty (n 275), Art 12. 287 Ibid., Art 1(1(k)). 288 Ibid. 289 Ibid., Arts 1(1(d)) & 11(1). 290 Ibid., Art 12 (emphasis added). 291 Ibid., Art 1(1(l)).

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including dugong and turtles,292 provided that the fishing is conducted for subsistence purposes and ‘in accordance with local tradition’.293 Since the Treaty allows the term ‘traditional’ to be ‘interpreted liberally and in the light of prevailing custom’,294 it recognizes cultural dynamism and provides tradi­ tional inhabitants flexibility to make necessary adaptations to their fishing traditions, including improving their traditional fishing methods and tools.295 Nevertheless, the Treaty does preclude the application of the liberal inter­ pretation of ‘traditional’ ‘in relation to activities of a commercial nature’,296 thereby excluding commercial fishing from the domain of ‘traditional fishing’ and the associated special entitlements available to traditional inhabitants. Thus, fishing for commercial purposes by traditional inhabitants of one party within the PZ follows the same procedure as required for non-traditional commercial fishers. That is, it requires a fishing permit from the State of nationality and the endorsement of the permit by the other party (i.e., joint licensing arrangement) consistent with the catch-sharing arrangements of the PZ commercial fisheries provided for under the Treaty.297 However, the Treaty requires commercial fishing in the PZ to be conducted in harmony with traditional fishing and in the event of possible adverse effects, tradi­ tional fishing is to be given priority.298 This prioritization of traditional fish­ ing may require State parties to take measures to restrict commercial fishing, including a restriction on the number of licenses, the volume of catches, or the manner in which the fishing is conducted in the PZ to ensure that tradi­ tional fisheries are not damaged or restricted.299 The Treaty also imposes a moratorium on the exploitation of non-living natural resources (mining and oil drilling) within the PZ.300 Initially, this was for a period of ten years after the entry into force of the Treaty;301 however, this period has been extended from time to time and, in 2008, was extended for an indefinite

292 Ibid., Art 1(1(l)). Even though State parties have a right to take conservation measures to protect species of indigenous fauna and flora, which are or may become threatened with extinction or which they have an obligation to protect under international law pursuant to Article 14(2), the Treaty obligates both parties to use their ‘best endeavors to minimize any restrictive effects of [those] measure[s] on traditional fishing’ (Arts 14(4) & 20(2)). 293 Ibid., Art 12. 294 Ibid., Art 1(1(k)). 295 B Arthur, ‘Tradition and Legislation: Analysis of Torres Strait Treaty and Fisheries Act Terms’, Center for Aboriginal Economic Policy Research (The Australian National Uni­ versity 2004) 8–9. 296 Torres Strait Treaty (n 275), Art 1(1(k)). 297 Articles 23 to 26 of the Torres Strait Treaty provide arrangements for the sharing of the total allowable catch of the PZ commercial fisheries. 298 Ibid., Art 20. 299 See SB Kaye, Jurisdictional Patchwork (n 282), 12. 300 Torres Strait Treaty (n 275), Art 15. 301 Ibid., Art 15.

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period.302 This measure protects not only the fragile environment but also protects the traditional ways of life of traditional inhabitants from the pos­ sible harms associated with extraction activities. The Torres Strait Treaty also provides three layers of mechanisms for con­ sultation and participation of the traditional inhabitants. First, the Treaty requires each State party to establish liaison officers on each side of the bor­ der in order to facilitate and monitor the implementation of the provisions of the Treaty at the local level.303 One of the main responsibilities of each repre­ sentative liaison officer is to consult closely with representatives of the tradi­ tional inhabitants on his/her side of the border regarding any problems that may arise in the exercise of their substantive rights recognized in the Treaty and convey their views to his/her government.304 To facilitate the consultation process, the two governments established a common forum for indigenous inhabitants on both sides of the border, known as the Traditional Inhabit­ ants’ Meeting (TIM). TIM enables indigenous inhabitants to discuss emerg­ ing issues and activities in the PZ and report any concerns to their respective liaison officers.305 Second, the Treaty establishes an advisory and consulta­ tive body on matters of the PZ, known as the Torres Strait Joint Advisory Council (TSJAC).306 The TSJAC is composed of 18 members, of which at least three are representatives of traditional inhabitants from both States.307 The TSJAC is mandated: (i) to seek solutions to problems that may arise at the local level and which are not solved by consultations with the liaison officers of the respective parties; (ii) to consider and make recommendations to the parties concerning any developments or proposals which might affect the traditional ways of life and livelihood of traditional inhabitants (includ­ ing their free movement, performance of traditional activities and customary rights recognized under the Treaty); and (iii) to – from time to time and as necessary – review, report, and make recommendations to the State parties on any matters relevant to the effective implementation of the Treaty.308 In the exercise of these functions, the TSJAC is required to properly consult the traditional inhabitants concerned, give them full and timely opportunity to comment on matters of their concern, and properly convey their views to the 302 See Australian Minister for Foreign Affairs and Trade, ‘Extension of the Torres Strait Mining Moratorium’ (12 February  2008), available at: www.rnz.co.nz/international/ pacific-news/175420/australia-and-png-agree-on-extension-of-torres-moratorium (accessed September 2023). 303 Torres Strait Treaty (n 275), Art 18(1). 304 Ibid., Arts 18(3(a)). See Article 18(2) for other general functions of the liaison officers. 305 Torres Strait Treaty in Brief, Australian Government: Department of Foreign Affairs and Trade, available at: http://dfat.gov.au/geo/torres-strait/Pages/the-torres-strait-treaty.aspx (accessed September 2023). 306 Torres Strait Treaty (275), Art 19. 307 Ibid., Art 19(1) & (6). 308 Ibid., Art 19(2).

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contracting governments through its reports and recommendations.309 Third, Article 26(4) of the Treaty obliges the responsible management organs of both States to directly consult, from time to time, traditional inhabitants on the licensing arrangements of the PZ commercial fisheries. Therefore, the Treaty provides ways for traditional inhabitants to be con­ sulted by and represented in the advisory bodies established to ensure the effec­ tive implementation of the provisions related to the PZ. Nonetheless, since these treaty bodies have only recommendatory functions, the final management and administrative decisions are made by the relevant organs of the two States, either individually or jointly. The extent to which States take indigenous concerns into account in the implementation of the recommendations of the previously­ mentioned treaty bodies depends on their free will. In this regard, commentators suggest that, in practice, traditional inhabitants have not been given real oppor­ tunities to influence State proposals and decisions that affect them.310 In conclusion, the Torres Strait Treaty is a complex arrangement between Australia and PNG designed to achieve multiple purposes. Even though the indigenous communities from both States did not meaningfully participate in the negotiation of the maritime boundary, the Treaty provides a compre­ hensive approach to acknowledge and protect their traditional rights across the designated international boundaries. Yet, the narrow definition of ‘tradi­ tional’ (excluding commercial fishing) ignores the dynamic nature of tradi­ tion and the evolving socio-economic conditions of traditional inhabitants. That said, the Torres Strait Treaty provides a useful model to accommodate the traditional rights of indigenous inhabitants, which has been followed by other States – and is discussed in the following sections. 6.3 Maritime boundary delimitation agreements between Indonesia and PNG Australia – acting on behalf of PNG – concluded a series of agreements with Indonesia in 1971,311 1972,312 and 1973313 to delimit the maritime boundaries

309 Ibid., Art 19(4). 310 See M Monica and S Colin, ‘Indigenous Rights and Control of the Sea in the Torres Strait’ (2001) 5(5) Indigenous Law Bulletin 11, 12; DM Schug, International Maritime Bounda­ ries and Indigenous Peoples (n 2), 217–218. 311 Agreement between the Government of the Republic of Indonesia and the Government of the Commonwealth of Australia Establishing Certain Seabed Boundaries (1971 Seabed Agreement), signed at Canberra on 18 May 1971 (entered into force 8 November 1973). 312 Agreement between the Government of the Republic of Indonesia and the Government of the Commonwealth of Australia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, Supplementary to the Agreement of 18 May 1971, signed at Jakarta on 9 October 1972 (entered into force 8 November 1973). 313 Agreement between Indonesia and Australia Concerning Certain Boundaries between Indo­ nesia and Papua New Guinea, [1973] PITSE 1, signed at Jakarta on 12 February  1973

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between PNG and Indonesia. After acquiring its independence, PNG accepted those agreements as valid and applicable.314 PNG also concluded another maritime boundary agreement with Indonesia in 1980315 to settle the limits of the exclusive fishing zones and the continental shelf in mari­ time areas not delimited by the previous agreements (i.e., to extend maritime boundaries on the north coast of New Guinea in the Pacific Ocean). The 1980 agreement considers the customs and TFRs of the indigenous peoples whose traditionally used marine areas are split by the designated maritime boundary. Article 5(1) stipulates that ‘the right of nationals of either party who have, customarily and by traditional methods, fished in the waters of the other party is recognized and shall be respected’.316 Article 5(2) further requires the State parties to conclude a separate agreement to determine the nature and extent of TFRs. To that end, the State parties concluded the Basic Agreement on Border Arrangements in 1984 (the 1984 Indonesia-PNG Basic Agreement).317 The Basic Agreement requires the State parties to establish a common Border Area – consisting of the Kecamatan-Kecamatan Perbatasan on the Indonesian side and the Census Divisions on the side of PNG – where tradi­ tional inhabitants will continue practicing their traditional activities.318 Even though the Basic Agreement does not define ‘traditional inhabitants’, the term is used throughout the Agreement to refer to citizens of Indonesia and PNG who traditionally live in the Border Area. Article 4 provides the follow­ ing general core substantive rights afforded to traditional inhabitants and the corresponding obligations of State parties: Each country shall continue to recognize and permit movement across the Border by the traditional inhabitants of the other country . . . for traditional

314 315

316 317

318

(entered into force 26 November 1974). This Agreement not only delimited the maritime boundaries between Indonesia and PNG off the northern and southern coasts of the Island of New Guinea (Irian), but also demarcated the land boundaries between them on that island. The Geographer, ‘Territorial Sea and Continental Shelf Boundaries: Australia and Papua New Guinea – Indonesia’ (1979) Limits in the Sea, No 87, 2. Agreement between the Government of the Republic of Indonesia and the Government of Papua New Guinea Concerning Maritime Boundaries between the Republic of Indonesia and Papua New Guinea and Cooperation on Related Matters (The 1980 Indonesia-PNG Agreement), signed at Jakarta on 13 December  1980 (the 1980 Indonesia-PNG Agree­ ment), (entered into force 10 July 1982). Ibid., Art 5(1). Basic Agreement between the Government of the Republic of Indonesia and the Govern­ ment of Papua New Guinea on Border Arrangements (the 1984 Indonesia-PNG Basic Agreement), signed at Port Moresby on 29 October 1984. This Agreement regulates not only traditional fishing rights but also deals with several other issues in the Border Area, including security, immigration, resource development, and environmental protection. Ibid., Art 1(1). The Border Area covers both land and marine areas.

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activities within the Border Area such as social contacts and ceremonies including marriage, gardening, hunting, collecting and other land usage, fishing and other usage of waters, and customary border trade.319 However, the Basic Agreement includes the following caveat: this special enti­ tlement applies if and only if the movement is ‘temporary in character and not for the purpose of resettlement’.320 Since the Agreement does not define or give guidance as to what the terms ‘temporary character’ and ‘permanent settlement’ mean, it gives each State party a wide margin of appreciation to limit free movement on these grounds.321 The exercise of the two most important traditional rights, the right to land and waters and the right to customary cross-border trade, are emphasized in the Basic Agreement. Article 5 provides that [w]here the traditional inhabitants of one country .  .  . enjoy traditional rights of access to and usage of areas of land or waters in the Border Area of the other country that country, shall permit the continued exercise of those rights subject to its existing laws and regulations on the same condi­ tions as those applying to its own citizens.322 It underscores the fact that recognized traditional rights to land and waters are non-exclusive use rights rather than exclusive property rights.323 Similarly, Article 9 obliges State parties to facilitate the continuation of ‘cus­ tomary cross-border trade’ by the traditional inhabitants provided that the cross-border trade is of ‘a traditional nature and conducted in order to satisfy the needs of the people in the Border Area’, and that ‘the goods traded are not prohibited by either Government’. No clarification is provided for the terms ‘traditional nature’ and ‘to satisfy the needs of the people’ under the first condition. The second requirement refers, inter alia, to trade in goods made from products of species protected under the national law of any of the States or listed under Appendix I of CITES to which both States are parties. In terms of institutional arrangements, the Basic Agreement establishes a Joint Border Committee (JBC) and liaison meetings to monitor the effective implementation of the Agreement at the national and local levels, respec­ tively.324 Unlike the Torres Strait Treaty, this Agreement does not require traditional inhabitants to be represented in the JBC, nor does it impose an

319 Ibid., Art 4(1).

320 Ibid., Arts 4(2) & (3).

321 See MR  Pugu, ‘Model of Indonesia-PNG Border Area Management of Keerom District’

(2017) 54 International Affairs and Global Strategy 13. 322 The 1984 Basic Agreement (n 317), Art 5(1). 323 Ibid., Art 5(2). 324 Ibid., Arts 2 & 3.

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obligation on the liaison officers to consult the concerned indigenous inhabit­ ants on matters of importance to them. These bodies may, however, reflect indigenous interests as part of their broader mandate to advise and make rec­ ommendations to contracting States on all matters relating to the Agreement. In sum, capitalizing on their prior experience acquired from their respective treaty practices with Australia, Indonesia and PNG devised a useful mecha­ nism to accommodate the traditional rights of their traditional inhabitants across international maritime boundaries. In particular, the Basic Agreement on Border Arrangements follows the precedent set by the Torres Strait Treaty in establishing a zone of protection and institutional arrangements. Yet, since the Agreement does not have a section that defines relevant terms, some of the provisions are open to interpretation, and State parties have broad discre­ tion to make decisions that may affect the rights of indigenous inhabitants. This problem is further aggravated by the fact that the Agreement does not provide a mechanism for consultation and participation of indigenous inhab­ itants with respect to developments in the Border Area, which may affect their traditional rights. In this respect, the Basic Agreement is not as progres­ sive as the Torres Strait Treaty. 6.4 Maritime boundary agreements between PNG and the Solomon Islands PNG and the Solomon Islands concluded a bilateral treaty in 1989 to establish their maritime boundaries and to determine their respective jurisdictions (the 1989 PNG-Solomon Islands Maritime Boundary Treaty).325 The designated maritime boundary represents a single modified equidistance line between the two States and cuts through the Bougainville Strait and the Solomon Sea.326 The equidistance line was adjusted at the southwest of the Bougainville Strait in order to accommodate the particular concern of the Solomon Islands to ‘maintain access to traditional fisheries’.327 As such, TFRs were considered as special circumstances to modify the median line. However, it was not pos­ sible to include all marine areas traditionally used by indigenous inhabitants

325 Treaty between the Independent State of Papua New Guinea and Solomon Islands Con­ cerning Sovereignty, Maritime and Seabed Boundaries between the Two Countries and Co-Operation on Related Matters (the 1989 PNG-Solomon Islands Maritime Boundary Treaty), signed at Port Moresby on 25 January 1989. 326 Ibid., Art 2. For a detailed discussion of the Agreement, see C Park, ‘Papua New Guinea – Solomon Islands: Report No 5–16’ in JI Charney and LM Alexander (eds), International Maritime Boundaries, Vol II (Martinus Nijhoff 1993) 1155–1165; and V Prescott, ‘The Papua New Guinea – Solomon Islands Maritime Boundary’ (1994) 11(1) Ocean Year­ book 179. 327 TL McDorman, ‘Papua New Guinea-Solomon Islands: Report No 5–16(2)’ in JI Charney and LM Alexander (eds), International Maritime Boundaries, Vol III (Martinus Nijhoff 1998) 2325.

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of both States through adjustment of the boundary line. Consequently, the designated boundary still divides communities who have kinship relations and affects their customary ‘land and sea titles acknowledged by kinship ties across the boundary’.328 However, the Treaty includes a provision dealing with the accommodation of existing rights and interests of traditional inhabitants on both sides of the maritime boundary. Article 7 requires that State parties establish ‘Special Areas’ consisting of all land, sea, seabed, and subsoil of maritime areas on both sides of the boundary, whose principal purpose is ‘to acknowledge and protect the traditional way of life and livelihood of the traditional inhabit­ ants living in the special areas including the rights of free movement, fish­ ing and other lawful traditional activities’.329 The Special Areas are, thus, functionally equivalent to the Torres Strait Treaty Protected Zone and the common Border Area established by the Indonesia-PNG Basic Agreement (discussed previously). While the 1989 PNG-Solomon Islands Maritime Boundary Treaty indicates the general location in which the Special Areas should be established,330 it fails to: (i) specify the exact limits of such Special Areas; (ii) define the beneficiary ‘traditional inhabitants’; and (iii) ascertain the nature and extent of the traditional rights protected. Instead, Article 7(3) requires State parties to determine those details by a separate agreement. To that end, the parties concluded an Agreement on the Administration of the Special Areas.331 The Agreement on the Administration of the Special Areas specified the limits of Special Areas as lying in the North Solomon (the Bougainville) Prov­ ince of PNG’s side and within the Wards of the Western Province, Malaita Province, and Chiseul (Lauru Island) Province on the Solomon Islands’ side of the boundary.332 These provinces include, inter alia, Bougainville, Tauu, Mortlock, and Nukumanu Islands in PNG, and the Shortland Islands group, Choiseuel Island, and Ontong Java Island in the Solomon Islands.333 Unlike the Torres Strait Protected Zone, which is a single unified joint zone, this Agreement envisioned the establishment of a number of distinct

328 V Prescott, The Papua New Guinea-Solomon Islands Maritime Boundary (n 326), 190–191. 329 The 1989 PNG-Solomon Islands Maritime Boundary Treaty (n 325), Art 7(1) & (2). 330 Article 7(1) stipulates that Special Areas should be established ‘within the North Solo­ mon’s Province of Papua New Guinea and the Western and Malaita Provinces of Solomon Islands’. 331 Agreement between the Government of Papua New Guinea and the Government of Solo­ mon Islands Concerning the Administration of the Special Areas (the 1989 PNG-Solomon Islands Agreement on Administration of Special Areas), [1989] PITSE 15, signed at Port Moresby on 25 January 1989 (entered into force 5 March 2004). 332 Ibid., Art 2. 333 For an illustrative map of the limits of Special Areas, see C Park, ‘Papua New Guinea – Solomon Islands: Report No 5–16’ in JI Charney and LM Alexander (eds), International Maritime Boundaries, Vol II (Martinus Nijhoff 1993) 1161.

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Special Areas on both sides of the maritime boundary as the plural ‘Areas’ signifies.334 Article 4 stipulates a general obligation requiring each State party to allow traditional inhabitants of the other party to continue to enjoy their traditional activities and customary rights of access to and usage of lands, seabed, sea, estuaries, and coastal areas that are located on its side of the designated Special Areas on a basis equal to that of its own traditional inhab­ itants.335 The rights of traditional inhabitants to conduct customary non-com­ mercial border trade were also given due recognition. This category of trade covers the sale of goods by traditional inhabitants at the local marketplaces within the Special Areas ‘in exchange for money to pay for other goods to be consumed by them and their dependents’ but does not include the sale of goods ‘to earn profit’.336 The Agreement established liaison officers and a 12-member Joint Advi­ sory Committee (where at least two of the members are representatives of traditional inhabitants) having the same functions as stipulated under the Torres Strait Treaty, including the obligation to consult traditional inhabit­ ants on matters that may affect them.337 The definition of ‘traditional inhab­ itants’, ‘traditional activities’, ‘free movement’, and ‘traditional fishing’ are also directly taken from the Torres Strait Treaty.338 In short, the Agreement on the Administration of Special Areas followed a similar comprehensive approach to recognizing TFRs as did the Torres Strait Treaty. The actual implementation of the Agreement was, however, hampered by the secession­ ist movement in Bougainville, which started in 1988 and lasted for more than a decade. As a result, the State parties were not able to precisely designate Special Areas.339 Following the restoration of peace upon an arrangement for an autono­ mous Bougainville Government,340 the State parties reviewed the Agreement on the Administration of Special Areas and replaced it with a new compre­ hensive agreement in 2004 (the 2004 PNG-Solomon Islands Basic Agreement on Border Arrangements).341 The Agreement maintains a similar approach to

334 Article 2 stipulated that each State party has the responsibility, in consultation with the other party, to make the necessary arrangements for the demarcation and mapping of the Special Areas on its side of the maritime boundary. 335 The 1989 Agreement on Administration of Special Areas (n 331), Art 4. 336 Ibid., Art 1(1(f)). 337 Ibid., Arts 8 & 9. 338 Ibid., Art 1. To avoid repetition, the definitions of these terms are not reproduced here. 339 TL McDorman, ‘Papua New Guinea – Solomon Islands: Report No 5–16(2)’ (n 327), 2323. 340 For details of the Bougainville Autonomous Arrangement, see Bougainville Peace Agree­ ment, signed at Arawa on 30 August 2001, available at: www.abg.gov.pg/uploads/documents/ BOUGAINVILLE_PEACE_AGREEMENT_2001.pdf (accessed September 2023). 341 Basic Agreement between the Government of Solomon Islands and the Government of Papua New Guinea on Border Arrangements (the 2004 PNG-Solomon Islands Basic Agree­ ment on Border Arrangements), [2004] PITSE 8, signed at Port Moresby on 27 July 2004

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the previous agreement with the two significant changes. First, it replaces the terms ‘Special Areas’ and ‘Joint Advisory Committee’ with ‘Border Areas’ and ‘Joint Border Committee’, respectively.342 Second, it incorporates the caveat adopted in the Indonesia-PNG Agreement on Border Arrangements – i.e., the rights of traditional inhabitants of one party to use land, waters, and sea within the Border Area of the other party ‘shall not constitute property rights’ and that such rights shall be exercised ‘without settling permanently on that side of the Border’.343 In sum, the 1989 PNG-Solomon Islands Maritime Boundary Treaty as well as the subsequent supplementary agreements, recognize the traditional way of life and livelihoods of indigenous inhabitants across international maritime boundaries. By drawing in part from both the Torres Strait Treaty and the Indonesia-PNG models, the States parties devised a well-crafted approach to recognize and protect the traditional rights of the indigenous peoples inhabiting those islands close to their respective maritime bounda­ ries. However, in line with the Peace Agreement,344 the people of Bougainville voted for independence from PNG in a referendum held from 23 Novem­ ber to 7 December 2019,345 and this brings into question whether the cur­ rent arrangements between PNG and the Solomon Islands will continue to operate. If the independence of Bougainville is implemented, there are two possibilities. Either Bougainville will inherit the current arrangements, or a new maritime boundary agreement between the three States, including new arrangements for the protection of traditional inhabitants, will be required. 6.5 Intermediate conclusion on State bilateral practice on TFRs The State bilateral practices canvassed in the previous sections deal with the issue of accommodating the traditional rights of indigenous communities whose traditional marine territories are divided by international maritime boundaries. States have dealt with the issue either as part of a delimitation agreement or by separate supplementary agreement(s) that form an integral

342 343 344 345

(entered into force on the date of signature). Unlike the Agreement on the Administration of Special Areas, which specifically dealt with regulation of traditional rights of traditional inhabitants, this Basic Agreement has a broader scope covering a wide range of matters, including border security, natural resource development, immigration, and cooperation in search and rescue operations. Ibid., Art 2. Ibid., Art 6(2) & (3). See Bougainville Peace Agreement (n 340). See the Guardian, ‘Bougainville referendum: region votes overwhelmingly for independ­ ence from Papua New Guinea’, available at: www.theguardian.com/world/2019/dec/11/ bougainville-referendum-region-votes-overwhelmingly-for-independence-from-papua­ new-guinea (accessed September 2023).

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part of the boundary agreement. Most of the agreements use the terms ‘tra­ ditional fishermen’, ‘traditional inhabitants’, or ‘local fishermen’ rather than ‘indigenous peoples’ to describe the right holders/beneficiaries of TFRs. This is understandable, given that the concept of indigenous peoples was not widely recognized in international law by the time most of these maritime boundary agreements were concluded. Yet, the definitions of these generic terms resonate well with the contemporary concept of indigeneity, and such terms do indeed embrace indigenous peoples. The practice is diverse in terms of the ways in which States recognize TFRs. In general terms, treaty practice offers three principal approaches to recog­ nizing the traditional rights of indigenous communities to use marine space and resources across international maritime boundaries. The first approach involves a non-reciprocal arrangement where only one State recognizes the continued exercise of traditional activities, including traditional fishing, by indigenous inhabitants of another State within a certain marine area falling under its jurisdiction. An example of this approach is the 1974 AustraliaIndonesia MOU. The second approach involves a reciprocal arrangement where each State recognizes and respects the rights of the traditional inhabit­ ants of the other State within its side of the maritime boundary in the same manner as its own traditional inhabitants. Reciprocity and mutual benefit are the guiding principles in this regard. This approach has been achieved either by establishing a single unified joint zone within which the indigenous communities from both States freely exercise their traditional activities (e.g., the Torres Strait Treaty PZ) or by creating several distinct special areas on both sides of the boundary where TFRs will continue to be practiced (as envisioned in the 1989 PNG-Solomon Islands Maritime Boundary Treaty). In this respect, Anderson observes that establishing special zones or areas to rec­ ognize TFRs has become a current trend in the law and practice of maritime boundary-making.346 Third, States have, at least in one case, considered TFRs as a special circumstance justifying the adjustment of a maritime boundary line in the delimitation of overlapping territorial sea claims (the adjustment made in the southwest Bougainville straight under the 1989 PNG-Solomon Islands Maritime Boundary Treaty is a case in point). Regarding the material content, most treaty practice recognizes and pro­ tects not only traditional fishing but also a wide range of other traditional activities – including those activities of spiritual and cultural significance to the concerned indigenous communities. Most of the treaty arrangements are also comprehensive, providing elaborated regulatory regimes, institutional arrange­ ments, and consultative mechanisms for the concerned indigenous inhabitants.

346 D Anderson, ‘Developments in Maritime Boundary Law and Practice’ in DA Colson and RW Smith (eds), International Maritime Boundaries, Vol V (Martinus Nijhoff 2005) 3217–3218.

Beyond international maritime boundaries

339

In sum, the examined State bilateral practice clearly demonstrates that the drawing of maritime boundary lines should not necessarily affect the existing traditional rights of indigenous inhabitants. States can devise creative solu­ tions to recognize and protect such rights while concluding maritime bound­ ary agreements. Although the practice is not widespread at this point and thus cannot be enough to establish customary international law, the bilateral agreements offer useful examples that reflect acceptance of the need to coop­ eratively deal with TFRs when negotiating maritime boundary agreements. The variety of approaches adopted by the bilateral practice can serve as use­ ful models for other States to consider in future delimitations dealing with similar situations – situations in which indigenous interests are involved in the delimitation of maritime boundaries. Indeed, such types of cooperative approaches should be widely adopted as they not only preserve existing tradi­ tional rights and facilitate the delimitation process but also assist in avoiding potential conflicts in the subsequent implementation of boundary agreements. Such an approach would create lasting peace between neighboring States. 7. Conclusion Although the LOSC was adopted with a view to creating a comprehensive regime for the regulation of all maritime affairs,347 the Convention does not eliminate all forms of previously established TFRs. As this chapter shows, such existing TFRs could continue to co-exist with the LOSC regime within certain maritime zones, particularly in archipelagic waters and the territorial sea. Moreover, although there is no consensus in the jurisprudence of inter­ national courts and tribunals and opinions of legal scholars regarding the continuity of TFRs in the EEZ, TFRs are a relevant factor to be considered by a coastal State when deciding access to surplus resources, and potentially relevant special circumstances in the delimitation of overlapping EEZ claims. More generally, the provisions of the LOSC, the jurisprudence of recent arbi­ tral tribunals, and scholarly writings support the general principle of interna­ tional law that a change of sovereignty or exclusive jurisdiction over a certain marine space (particularly in the territorial sea and archipelagic waters) does not extinguish acquired TFRs of indigenous communities. The LOSC is flex­ ible enough to accommodate such rights through evolutive interpretation of existing provisions, and where principle compels the recognition of such rights, the States concerned must specify the material content of the TFRs and devise an appropriate approach for the protection of such rights by way of a bilateral agreement – one that fits the specific context and circumstances. Nonetheless, the recognition of TFRs in the law of the sea remains state-centric in its approach in the sense that the beneficiary indigenous

347 LOSC (n 1), preamble, recital 1.

340

Law of the sea and the rights of indigenous peoples

communities do not have direct standing to claim their TFRs from the neigh­ boring coastal States – at least as a matter of international law.348 Rather, all claims of TFRs, specific bilateral agreements, or any disputes relating to such rights are to be made or resolved through the State of the nationality of the beneficiary artisanal or indigenous community acting on their behalf. Thus, the TFRs of indigenous peoples depend on the goodwill of the States in which they live to bring TFRs claims. This approach to protecting TFRs through the agency of States should change.349 The beneficiary communities should be able to participate directly in the negotiation of bilateral agreements dealing with TFRs and be consulted before a coastal State takes measures that may affect such rights. Indeed, some of the bilateral maritime boundary agreements can­ vassed in this chapter introduced institutional arrangements through which indigenous communities are represented or consulted on matters that may affect their traditional rights. This approach is consistent with the contempo­ rary international human rights law standards and should be widely adopted. The alternative approach for indigenous peoples would be to follow the human rights path and resort to human rights avenues. Since TFRs are pro­ tected under international human rights law, indigenous communities would be able to invoke applicable human rights treaties directly against the coastal State involved because it exercises jurisdiction in the [marine area where TFRs are exercised] . . . rather than relying on their own State to take up their claim via the LOSC’s dispute resolution mechanisms.350 Thus, coastal indigenous individuals/communities should be able to bring legal action for the protection of their TFRs directly against the coastal State within whose waters such rights exist through the various complaint mecha­ nisms of the UN human rights treaty monitoring bodies and regional human rights courts and commissions. This approach is analogous to the ways in which indigenous communities have widely asserted their rights to lands and natural resources, including marine space and marine resources, against their own State of nationality (see Chapters  3 and 4), and this strengthens the international legal personality of indigenous peoples. There is no such prac­ tice in the human rights treaty bodies and courts so far, but this could be a viable option to follow.

348 There is no reason in principle why an indigenous community resident in State A should not seek to vindicate its traditional rights within the territory of State B in the domestic courts of State B. See, for example the decision of the Supreme Court of Canada in R v Desautel, 2021 SCC 17. 349 For a discussion of the limitations of such a mechanism of ‘diplomatic protection’, see S Allen, The Jurisprudence of Artisanal Fishing Revisited (n 109), 103–104. 350 Ibid., 119 (emphasis in the original).

Chapter 9

Conclusions

This book explored the international legal framework applicable to the rights of indigenous peoples to marine space and marine resources through three research questions. The first question concerned the extent to which international law recognizes and protects the rights of indigenous peoples in relation to natural resources generally within their traditional territories and specifically in relation to marine space and marine resources and questioned to what extent international law should recognize such rights. The second question dealt with whether, and to what extent, the interaction between the law of the sea and international human rights law pertaining to the rights of indigenous peoples is mutually supportive or conflictual. The third ques­ tion follows from the second and inquires as to whether and to what extent the law of the sea regime limits the capacity of coastal States to recognize and implement the rights of indigenous peoples relating to marine space and resources. This book addressed these questions in three parts by using Third World approaches to international law (TWAIL) as a theoretical and meth­ odological lens. 1. Growing recognition and protection of the rights of indigenous peoples to marine space and marine resources under international human rights law Parts I and II of this book demonstrate that, unlike the pre-classical and clas­ sical periods of international law, indigenous peoples have acquired a unique status in contemporary international law. They have gained clear recognition of their international legal personality as distinct peoples with special collec­ tive rights and as active participants rather than as mere objects of interna­ tional law. Even though international law was used historically to facilitate colonialism and deprive indigenous peoples of their inherent rights, interna­ tional law – especially within the human rights framework – has evolved in a manner that allows indigenous peoples to make claims over their traditional lands, territories, and natural resources. Since most indigenous peoples have limited opportunities to influence political developments in their favor at the DOI: 10.4324/9781003242772-12

342

Law of the sea and the rights of indigenous peoples

national level, they have increasingly used international human rights law and its judicial and complaint mechanisms as important tools for advancing their rights. International human rights law – both general and indigenous-specific – has continuously developed and evolved in a manner that encompasses a wide range of rights for indigenous peoples, including their communal rights to lands, territories, and natural resources. Indigenous-specific human rights instruments provide extensive and explicit provisions recognizing such rights. Although the general global and regional human rights instruments do not include express references to indigenous peoples, these instruments contain universal norms that address the specific concerns of indigenous peoples. Thus, the right to (economic) self-determination, the right to culture, the right to property, the right to equality and non-discrimination, as well as the right to consultation and participation, including free, prior, and informed consent (FPIC), have all been interpreted and applied in a manner that recog­ nizes the rights of indigenous peoples relating to traditional lands and natural resources. These norms both protect the core substantive rights of indigenous peoples over their lands and natural resources, as well as recognize the con­ sultative and participatory engagement of indigenous peoples in all matters that may affect those rights. In this regard, the United Nations (UN) human rights treaty monitoring bodies and regional human rights courts and com­ missions (particularly the extensive jurisprudence of the Inter-American and African human rights systems) have played a significant role in the progres­ sive interpretation and adaptation of general human rights norms. These developments clearly manifest the ‘gradual decolonization of the legal status of indigenous peoples’1 by embracing indigenous peoples’ worldviews and recognizing their specific modalities and unique forms of land and natural resource uses. Part II of this book further emphasizes that international human rights law applies equally to both terrestrial and marine areas. It clearly shows that there is no compelling reason to treat marine spaces and resources – that have been integral to the economic survival, spiritual, and cultural life of indig­ enous peoples for centuries – differently from terrestrial areas and terrestrial natural resources. Since land and sea territories are inseparable units in indig­ enous peoples’ worldviews, and because marine space and its resources are at least as, if not more, important than terrestrial areas and terrestrial natural resources for coastal indigenous communities, the former deserves recogni­ tion and protection equal to that of the latter. Thus, the statist and Western conception of terrestrial and marine areas as separate (distinct) geographical

1 G Otis and A Laurent, ‘Indigenous Land Claims in Europe: The European Court of Human Rights and the Decolonization of Property’ (2013) 4(2) Arctic Review on Law and Politics 156, 160.

Conclusions

343

units is a false dichotomy with regard to the application of human rights law, in general, and the rights of indigenous peoples relating to marine space and marine resources, in particular. Although the general and indigenous-specific human rights treaties do not provide express provisions for the rights of indigenous peoples relat­ ing to marine space and marine living resources (MLRs), such rights can derive from general rules and principles of law applicable to traditional lands and natural resources. Accordingly, the cultural rights provisions of general and indigenous-specific human rights instruments recognize and protect the rights of indigenous peoples to control or access sacred marine sites and to harvest MLRs, including marine mammals, insofar as such harvesting practices are integral to their culture. It is also permissible to interpret the property rights provisions of general and indigenous-specific human rights instruments as protecting the communal property rights of indigenous com­ munities to marine areas and marine resources. Specifically, Article 13(2) of the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169)2 offers a broad definition of indigenous ‘land’ – including marine areas – and indirectly captures the application of the property rights provisions of the Convention to marine areas and the asso­ ciated marine resources. In this respect, coastal States are obliged not only to recognize the property rights of indigenous communities over traditional fishing grounds and marine resources in the same manner as non-indigenous peoples but are also obliged to recognize such rights in a manner that respects the communities’ distinct way of traditional resource use and management systems – in accordance with the evolved understanding of the right to non­ discrimination. This understanding of non-discrimination requires States to recognize the use of traditional fishing and hunting methods, including the freedom to adapt such methods to modern technologies. International human rights law also provides procedural safeguards that oblige coastal States to consult in good faith and meaningfully engage coastal indigenous communities in all decision-making processes related to marine space and marine resources affecting them. In certain circumstances – i.e., with respect to matters of fundamental importance for the survival, dignity, and well-being of indigenous peoples – coastal States are required to obtain the FPIC of the indigenous peoples concerned before taking any measures. The aforementioned human rights norms also impose a corresponding posi­ tive obligation on coastal States to take various forms of measures, including exploring all available options under the law of the sea to recognize and protect the rights of indigenous peoples related to marine space and marine resources.

2 Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Con­ vention 169), concluded at Geneva on 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991.

344

Law of the sea and the rights of indigenous peoples

That said, this book acknowledges that the practice of UN human rights treaty monitoring bodies and regional human rights courts and commissions in interpreting and applying general norms to the specific contexts of the rights of indigenous peoples to marine space and marine resources is lim­ ited and is not as extensive as the practice related to terrestrial areas and resources. 2. Towards indigenization of the law of the sea Part III of this book first examines whether the current law of the sea regime offers protection to the rights of indigenous peoples relating to marine space and MLRs, and then it examines its interaction with human rights law per­ taining to indigenous peoples. Part III shows that the principal law of the sea instruments does not expressly address the rights of indigenous peoples related to marine space and MLRs. This is due in large part to the histori­ cal development of the law of the sea. Most of the contemporary rules and principles of the law of the sea were developed and consolidated during an earlier period when the great maritime States were in competition for control of the ocean and its resources and were expanding their global trade and colonial influence. The UN Convention on the Law of the Sea (LOSC)3 was also concluded before the rights of indigenous peoples were well recognized and protected in international law. As such, the LOSC has been built on State-centric Western notions of law and does not expressly recognize the customary marine use systems of indigenous peoples and their traditional laws governing the sea. Thus, the recognition and protection of the rights of indigenous peoples to marine areas and marine resources necessarily requires a ‘decolonization’ of the dominant Western-oriented rules and principles of the law of the sea. Given the rapid evolution of international human rights law in a manner that recognizes the rights and worldviews of indigenous peoples in contemporary times, the law of the sea should also embrace wider global trends and developments. Part III of this book has shown that the law of the sea is capable of indigenizing itself by taking an evolutionary path and interacting with international human rights laws pertaining to indigenous peoples. 2.1 Interaction between the law of the sea and the rights of indigenous peoples This book concludes that the question of whether the law of the sea can interact with human rights law pertaining to indigenous peoples is ‘a false

3 United Nations Convention on the Law of the Sea, concluded at Montego Bay on 10 Decem­ ber 1982, 1833 UNTS 3 (entered into force 16 November 1994).

Conclusions

345

dilemma’.4 The fact that ocean space has been used as a venue for indig­ enous peoples to exercise their rights, that international human rights law applies to those maritime areas that fall within the ambit of the law of the sea, and the fact that human rights concerns and values are also part of the law of the sea – amongst other reasons – make the interaction between the two regimes inevitable. Thus, the relevant issue is rather identifying the nature of the interaction (complimentary or conflictual) and identifying effective meth­ odologies that enable coastal States to balance their concurrent obligations – obligations to indigenous peoples under international human rights law and obligations arising from the law of the sea. In this respect, the various cross-referencing clauses, applicable law, and relationship provisions of the LOSC and other related instruments, as well as the rules of treaty interpretation (particularly, Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT5)), serve as important legal tools to connect the law of the sea and international human rights law. These con­ necting mechanisms help to indigenize the law of the sea by allowing the rules and principles embodied in the LOSC and other law-of-the-sea-related instruments to be interpreted through the lens of international human rights law pertaining to indigenous peoples. This, in turn, enables coastal States to exercise their powers (sovereignty, sovereign rights, and discretions) afforded to them by the law of the sea in a manner that conforms with established human rights standards that recognize the rights of indigenous peoples to marine space and marine resources. Through specific examples, Part III of this book underscores that the issue of whether the law of the sea and the human rights law pertaining to indig­ enous peoples have a mutually reinforcing or conflictual relationship depends on the nature and type of the rights of indigenous peoples at issue – i.e., exclusive or non-exclusive rights – and the maritime zone within which such rights are exercised. Since coastal States have unqualified sovereignty over internal waters, the relationship between the law of the sea and the rights of indigenous peoples, regardless of whether they are exclusive area-based rights or non-exclusive rights, are complementary. However, there is a possibility for conflict between the exclusive rights of indigenous peoples and the right/ freedom of navigation of other States exercised in the territorial sea, archipe­ lagic waters, international straits, and the exclusive economic zone (EEZ) of a coastal State. In this regard, coastal States have various levels of powers under the LOSC and International Maritime Organization (IMO) instruments to regulate the exercise of navigational rights/freedoms in those maritime zones to protect the exclusive rights of indigenous peoples. These powers include 4 B Wilson, ‘Human Rights and Maritime Law Enforcement’ (2016) 52(2) Stanford Journal of International Law 243, 316. 5 Vienna Convention on the Law of Treaties (VCLT), concluded at Vienna on 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

346

Law of the sea and the rights of indigenous peoples

the designation of sea lanes and traffic separation schemes, the adoption of other ships’ routing measures, the designation of particularly sensitive sea areas (PSSA), and the adopting of associated protective measures (APMs). The relationship between the law of the sea and the non-exclusive rights of indigenous peoples, including resource harvesting rights, is complemen­ tary and non-conflictual. There are two main reasons for this non-conflictual interaction. First, although the LOSC allocates sovereignty and sovereign rights to a coastal State with respect to natural resources of the different mar­ itime zones, the Convention neither prescribes nor dictates how the coastal State should exercise its exclusive authority in relation to those resources or how it should allocate them. This decision is the sole authority of the coastal State, but such a decision must be exercised in a manner consistent with its human rights obligations. Second, while the LOSC imposes obligations on coastal States to conserve and manage MLRs in all maritime zones and to ensure optimum utilization of the surplus resources of the EEZ, it also grants coastal States broad discretion in taking such conservation measures and in granting access to foreign nationals in a manner that respects the rights of indigenous peoples. The provisions of the LOSC dealing with con­ servation, management, and optimum utilization of MLRs contain several generic terms that are inherently evolutionary and that offer significant scope for coastal State interpretation and innovation and serve as suitable avenues for incorporating the rights of indigenous peoples into the law of the sea regime. Indeed, subsequent instruments, such as the UN Fish Stocks Agree­ ment (UNFSA),6 the Convention on Biological Diversity (CBD),7 and the UN Food and Agriculture Organization (FAO) Code of Conduct for Responsible Fisheries,8 all expressly recognize the rights of indigenous peoples to harvest marine resources and to participate (including the use of their traditional knowledge) in the conservation and management of such resources. The FAO Small Scale Fisheries Guidelines (FAO SSF Guidelines)9 also expressly require coastal States to adopt a human rights-based approach in the context of con­ serving and managing indigenous fisheries. The relationship between the law of the sea and human rights law pertaining to indigenous peoples is, for the most part, complementary; thus, a coastal State can fulfill its obligations both under the law of the sea and international human rights law.

6 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December  1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, concluded at New York on 4 December 1995, 2167 UNTS 3 (entered into force 11 December 2001). 7 Convention concerning Indigenous and Tribal Peoples in Independent Countries, concluded at Geneva on 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991). 8 FAO, Code of Conduct for Responsible Fisheries (FAO 1995). 9 FAO, Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (SSF Guidelines) (FAO 2015).

Conclusions

347

This book further tested the validity of the previously mentioned general conclusions in the context of two specific non-exclusive rights of indigenous peoples: the right to harvest marine mammals and traditional fishing rights (TFRs) within maritime zones of neighboring States. Regarding the first right, this book demonstrates that the inherent flexibility built into the regulatory approaches of the LOSC, Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),10 Convention on the Conservation of Migratory Species of Wild Animals (CMS),11 and all agreements dealing with the conservation and management of specific types of marine mammals, enables their respective State parties and appropriate international organiza­ tions to design their conservation and management measures in a manner that is compatible with the rights of indigenous peoples. Similarly, TFRs of indigenous peoples survive the reclassification of maritime zones formerly part of the high seas and continue to co-exist with the LOSC regime within archipelagic waters and the territorial sea. Although the jurisprudence of the International Court of Justice (ICJ) and arbitral tribunals and the positions of legal scholars appear to be inconsistent regarding the continuity of TFRs in the EEZ, TFRs are unequivocally relevant factors to be considered by a coastal State when deciding upon access to surplus resources and potentially relevant to the delimitation of overlapping EEZ claims. Indeed, although not extensive, State practice on bilateral maritime boundary delimitation agree­ ments offers various modalities/approaches to recognizing TFRs without affecting the maritime boundary line – either by establishing special zones or areas or by allowing access to indigenous communities within a certain spa­ tial limit. Some States have also adjusted the maritime boundary delimitation line, considering TFRs as special circumstances. Some treaty arrangements – for example, the Torres Strait Treaty, the agreements between Indonesia and Papua New Guinea, and the agreements between Papua New Guinea and the Solomon Islands – provide comprehensive institutional arrangements and consultative mechanisms for the beneficiary indigenous peoples. In short, the relative silence of the principal law of the sea instruments with respect to the rights of indigenous peoples relating to marine space and marine resources does not suggest that the law of the sea regime restricts the power of a coastal State to recognize and protect such rights. There is sufficient room within the existing law of the sea framework to recognize the rights of indigenous peoples (i.e., to indigenize the law of the sea). The LOSC – being a comprehensive and flexible living instrument – is capable of embracing the rights of indigenous peoples related to marine space and 10 Convention on International Trade in Endangered Species of Wild Fauna and Flora, con­ cluded at Washington on 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975), amended at Bonn on 22 June 1979 and at Gaborone on 30 April 1983. 11 Convention on the Conservation of Migratory Species of Wild Animals, concluded at Bonn on 23 June 1979, 1651 UNTS 333 (entered into force 1 November 1983).

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Law of the sea and the rights of indigenous peoples

resources through the (re)interpretation and adaptation of existing rules and principles in light of evolving norms of human rights law. Such an evolution­ ary interpretative approach allows the coastal State to exercise its rights and broad discretionary powers under the law of the sea in a manner that recog­ nizes and guarantees greater protection of the rights of indigenous peoples to traditionally used marine areas and resources. Nonetheless, interpretative interaction is by no means sufficient to rec­ ognize indigenous peoples as subjects of the law of the sea. Thus, assur­ ances for the effective protection of indigenous rights through the express incorporation of human rights law into law of the sea instruments (i.e., express indigenization of the law of the sea) are necessary. The LOSC is con­ tinuously evolving to respond to new developments and challenges through global implementing agreements and regional fisheries agreements,12 which interpret, clarify, and develop its provisions. Incorporating express human rights law clauses into such implementing/regional agreements is one possible approach to recognize indigenous peoples as subjects of and integrate their rights into the law of the sea.13 Such incorporation of human rights offers the potential to further develop the law of the sea by influencing the interpreta­ tion of the provisions of the LOSC relevant to recognizing indigenous rights. Indeed, the significance of such an approach has been reflected in the UNFSA and the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (the CAOF Agreement), which expressly recognize the right of indigenous peoples to participate in the conservation and management of fisheries and to use their traditional knowledge, the latter referring specifi­ cally to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).14 Similarly, the recently adopted implementing agreement under the LOSC on the conservation and sustainable use of marine biological 12 Although, as shown, the LOSC aims to establish a comprehensive, uniform, and global legal order for the world’s ocean, it also encourages regional cooperation in fisheries management and has several specific provisions to that effect. 13 The other approach is to amend the LOSC as provided under Articles 312–316 of the LOSC. However, amending the LOSC to expressly incorporate the rights of indigenous peoples is likely an impossible pathway because of the difficulty of fulfilling the complicated ordinary amendment procedure (which requires the convening of a conference and obtaining consen­ sus), or the simplified procedure (which requires no objection by any single State) to get the Convention amended. For a detailed discussion, see D Freestone and AGO Elfrink, ‘Flex­ ibility and Innovation on the Law of the Sea – Will the LOSC Amendment Procedure Ever Be Used?’ in AGO Elfrink (ed.), Stability and Change in the Law of the Sea: The Role of the LOSC (Martinus Nijhoff 2005) 169–221. 14 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, con­ cluded at Illulissat on 3 October 2018 (not yet entered into force), preamble, recitals 10, 11, 12 and Arts 4(4) & 5(1(b)). For a detailed discussion, see N Bankes, ‘Arctic Ocean Manage­ ment and Indigenous Peoples: Recent Legal Developments’ (2020) 11(1) Yearbook of Polar Law 81; V Schatz, ‘Incorporation of Indigenous and Local Knowledge into Central Arctic Ocean Fisheries’ (2019) 10 Arctic Review on Law and Politics 130.

Conclusions

349

diversity of areas beyond national jurisdiction (BBNJ treaty) makes an express reference to UNDRIP, together with several references to the rights of indig­ enous peoples and the special significance of their traditional knowledge in the conservation and management of MLRs.15 In conclusion, this book fills a gap in the existing body of knowledge – the paucity of academic literature – with respect to the rights of indigenous peoples in relation to marine space and marine resources. It underscores that while international law is increasingly engaging with indigenous rights in marine areas, ‘it is not a respectful engagement between equals’.16 The recognition of indigenous people’s rights largely remains State-centric and paternalistic. This is particularly the case with regard to the International Whaling Commission’s (IWC) Aboriginal Subsistence Whaling (ASW) regime and the recognition of TFRs under the LOSC. This book demonstrates that exploiting all available openings and options in international law of the sea and international human rights law – including interpreting existing rules in an evolutionary manner – is a worthwhile strategy to advance the rights of indigenous peoples to marine space and marine resources. This book also shows that interaction between the law of the sea and international human rights law and express incorporation of indigenous rights into the law of the sea instruments will afford enhanced recognition of indigenous rights in marine space and to marine resources. This integrated approach creates a more respectful and pluralist understanding of the relationships between indigenous peoples and the States within which they live or practice rights to marine space and marine resources. It is through such an integrated approach that the unique perspectives of indigenous peoples and their traditional laws governing marine space and resources should be embraced. Thus, future developments, both in international human rights law and the law of the sea, should address the recognition deficit that characterizes both regimes. The deficit, as shown throughout this book, flows from, inter alia, the absence of sufficient and express references to the rights of indigenous peoples related to marine space and resources and the insufficiency of the case law of the human rights courts and treaty monitoring bodies recognizing such rights.

15 See Agreement under the United Nations Convention on the Law of the Sea on the conserva­ tion and sustainable use of marine biological diversity of areas beyond national jurisdiction (adopted 19 June 2023); see for example, the preamble, Articles 5, 10 bis, 17 (2, 3 and 4), 18 (1 and 2(c)), and 34. 16 S Allan et al., ‘Introduction’ in S Allen, N Bankes, and Ø Ravna (eds), The Rights of Indig­ enous Peoples in Marine Areas (Hart 2019) 1, 14.

Index

Aboriginal subsistence whaling (ASW):

catch quotas 256–257, 259–262,

265, 267, 278; description of

hunt 260–261, 264–264; Expert

Workshop 273; limitations 263;

needs statement 261–262, 272

Aboriginal Subsistence Whaling

Working Group (ASWWG) 258–259,

261, 271

ACHPR see African Charter on Human and Peoples Rights ACPB see Agreement on the Conservation of Polar Bears ADRIP see American Declaration on the Rights of Indigenous Peoples AfComHPR see African Commission on Human and Peoples’ Rights Africa: decolonization 50; freedom of

the seas doctrine 46–47; human

rights 64, 76, 80, 91–92, 103, 342;

terra nullius doctrine 40

African Charter on Human and Peoples Rights (ACHPR) 59, 72–73, 80–81 African Commission on Human and

Peoples’ Rights (AfComHPR) 80–81,

92–93, 103, 105, 112, 118–119

Agreement on Cooperation in Research,

Conservation and Management of

Marine Mammals in North Atlantic

(NAMMCO Agreement): catch

quotas 275–278; marine mammal

harvesting policy 239, 251, 274–275;

State obligations 232, 236

Agreement on the Conservation of Polar

Bears (ACPB) 17, 232, 251, 278–281

Åhrén, Mattias 85, 105, 112

Alaskan Eskimos 256, 260

allocation of rights 11, 148

American Declaration of the Rights

and Duties of Man (ADRDM) 99,

102–103

American Declaration on the Rights

of Indigenous Peoples (ADRIP):

consultation rights 114; cultural

rights 84–85; human rights

instrument 49, 64–65, 75

American Indians 32–33 Anand, Ram Presh 46

Anaya, James 33, 35–37, 44, 85

Anghie, Antony 21–22 APMs see associated protective measures aquaculture 12, 148; see also fish farms

Arbitral Tribunal: Abyei 290; Arctic

Sunrise 191–192, 196–194;

Barbados/Trinidad and Tobago 313;

Bering Fur Seal Arbitration 251;

Chagos 194, 297; Eritrea/Yemen

297; South China Sea 170, 297

arbitrator 41–42, 128, 302

archipelagic States: designated sea lanes 210–211, 231; rights and obligations 153, 161–163 archipelagic waters: conservation

and management 234; maritime

zones 153, 157–158, 161–163;

resource development 213, 219;

rite of passage 184, 205, 210–211;

territorial limits 124, 138, 159; TFRs

227, 293–296, 306, 339

archipelago 40, 162, 303

Arctic Sunrise Arbitration 192, 196, 202

area-based management tools (ABMTs)

173

artisanal fishing: communities 217,

287–288, 299, 306–307, 320; notion

of vested rights 307, 312, 321–322

Index

351

(reindeer herding) 86, 89; Nicaragua

v Colombia TFRs/ sovereign rights

violation 315–316, 318, 322;

Western Sahara doctrine of terra

nullius 54–55

CBD see Convention on Biological Diversity CERD Convention see Committee on the Elimination of All Forms of Racial Discrimination CESCR see Committee on Economic, Social and Cultural Rights Bankes, Nigel 218, 233

cession 38–39, 41–43, 55, 289

Barbados: artisanal fishing rights 322; Chagos Archipelago: Mauritius non-exclusive TFRs 313–314 128–130, 303–307 Barbados/Trinidad and Tobago

Chagos Tribunal 195, 307, 311–312;

Arbitration 313, 322

see also Arbitral Tribunal

Barnes, Richard 207

Chimni, Bhupinder S 21–22 Basic Agreement on Border

China: no fishing zone 307–308, 310; Arrangements 332, 334, 336

see also South China Sea battle of the books 44

Christian civilization 20, 31

Bavinck, Maarten (et al 2017) 15

CITES see Convention on International bays 8, 138, 158, 163

Trade in Endangered Species of Wild BBNJ treaty see Biodiversity Beyond Fauna and Flora National Jurisdiction civilization 35

Bedjaoui, M 20

climate change 132

Bering Fur Seal Treaty 17, 252–253 CMS see Convention on Migratory Bering fur seals 251–252 Species of Wild Animals Bering Sea 252

Coastal Fishing Committee (CFC)

Biodiversity Beyond National

132

Jurisdiction (BBNJ) treaty 16, 182,

coastal grab/grabbing 14, 148

349

coastal States: allocation of surplus

blue planet credentials 14

174–176, 179, 185, 220, 229,

Boyle, Alan 187, 202

235, 310–312, 339; conserve and

Brazil 80, 264

manage 16, 145, 166, 169, 171,

British Indian Ocean Territory (BIOT)

184–185, 219, 224, 233, 239, 315;

303

duties of 36, 165, 169–170, 179,

Burke, William T 166, 171, 220, 235

181, 194; freedom of navigation

rights 16, 169, 185, 191, 197, 203,

Cambodia 80, 126

205–207, 212–214, 229, 345; hold

Cambou, Dorthée 273

final authority regarding access 166;

Canada: Indigenous rights to self­ obligation of 93–94, 163, 169–170,

determination 77–78, 89; marine

172–173, 180, 205, 219, 224, 235,

mammal conservation 238, 241, 278,

294–295; sovereignty of 160, 203,

282; territorial sea proposal 156;

228, 297, 302

traffic separation scheme 212

coastal tidal areas 328

capacity to harvest 174, 176

Cobo study 4–5, 60–62 Cape Verde Islands 31

Cobo, José R. Martínez (Special case law 80, 92, 101, 119, 122, 189,

Rapporteur) see Cobo Study 305, 349; Eastern Greenland Case

Colombia 80, 315–316; see also case law (Demark v Norway) territorial

colonial power 20, 30, 32–34, 40, 46,

sovereignty 42–43; Kitok v Sweden

51, 56

Asia 40, 47, 50, 250, 307

associated protective measures (APMs)

213, 215–216, 218, 230, 346

ASW see Aboriginal subsistence whaling Australia: climate change 132;

colonization doctrine 40; freedom of

navigation rights 205–206, 216–217,

230; marine mammal conservation

250; maritime zone/boundaries

323–327, 331; right to economic

self-determination 79–80, 89

352

Index

colonization 15, 20, 32, 35, 40, 47, 54–55; see also decolonization Columbus, Christopher 30–31 commercial fishing 11, 141, 148, 317, 329, 331 Committee on Economic, Social and Cultural Rights (CESCR): cultural rights 87, 90, 93, 101, 133; equal rights/non-discrimination 110, 112, 118; right to self-determination 76, 79–80 Committee on the Elimination of All Forms of Racial Discrimination (CERD Committee): cultural recognition/non-discrimination 83, 109–110, 141–144; human rights 59, 99, 132 common property 57–58 Conference of Parties (CoP): conservation of marine mammals 247–248; rights to harvest marine animals 241, 244–245 conquest 22, 31–35, 38–39, 43, 108, 289 conservation: agreements and provisions 14–16; fisheries 136, 154; marine mammal 29, 233–235, 239, 247, 251, 253, 278, 282; natural resource 104, 106, 136, 139, 155, 167, 181, 208, 219; species-specific 177, 179, 234 conservation and management: fish stocks 182–183, 221, 225; living resources 83–184, 171, 177–181, 186; marine mammals 178, 221, 232–234, 239, 283–284; MLRs 183, 218–219, 222–224, 227, 234, 349 continental shelf 154–155, 158, 162, 219, 286, 313, 324, 332 Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169): cultural rights protections 84–85, 88, 94–95, 97; evolution of international law 49, 52–54, 60–62, 65; land and marine space 137–140, 321; non­ cumulative parameters 4; property rights 104, 106–108; right to consultation and participation 113, 117–118, 120, 146–147 Convention on Biological Diversity (CBD) 222–223, 346

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 232, 239–245, 250, 266, 283, 325; conservation approach 246; non-determinant finding (NDF) 245 Convention on Migratory Species of Wild Animals (CMS): conservation-oriented international treaties 232, 239; Memorandum of Understanding 250; migratory species 247–249 Coral Sea 216 Cordell, John 58 Crawford, James 20 cultural identity 10, 15, 84, 86–87, 89–91, 111, 122, 132, 231, 289, 323 cultural integrity 63–64, 71, 82, 84, 87–88, 92, 94, 134, 169, 218 cultural rights 24, 72, 82–85, 89, 92–94, 112, 130, 231, 251, 343 customary international law 25, 46, 65, 120, 136, 149, 154, 195, 228, 273, 289, 306–312, 316 Dahlman, Ian 66 decolonization 19, 22, 49–52, 54–56, 65, 71, 129, 154, 194, 342; see also self–determination Denmark 42–44, 251 doctrine: of discovery 33; of freedom of the sea 44–45, 47, 58, 154; respect for vested rights 289–292, 307, 310; terra nullius 39–40, 42, 48, 54–56, 58, 65 Dussias, Allison M. 9 Dutch East India Company 41–42 East Indies 44–45 ECHR see European Convention on Human Rights economic: activities 9, 76, 119, 131, 135, 166; self-reliance 15, 231 Ecuador 80; see also case law EEZ see exclusive economic zone effective occupation 38, 40–42, 44 Elferink, Alex G Oude 192 emancipation 23 Enyew, Endalew Lijalem 218 Eritrea/Yemen Arbitration 297 Erueti, Andrew 98 estuaries 8, 138, 158, 328, 336

Index European Convention on Human Rights

(ECHR) 59, 100, 109, 123, 125–126

European Powers 47

exclusive economic zone (EEZ):

jurisdiction 124–125, 138, 169–170;

negative effects 16, 58; regime 160,

164–165, 171, 178, 235, 315–317;

resources 166, 174–175, 212,

220; sovereign rights within 165,

206–207; TFRs 228, 310–312, 319,

322

exclusive fishing zone (EFZ) 155–156, 165, 292–293, 323–325 exploitation: Indigenous rights 52, 89,

91, 93; marine mammal 218, 235,

237, 240, 254; regulations 159, 162,

165–167; of resources 20, 47, 74,

106–107, 124–125, 139, 171–172,

175, 218, 276, 287, 306

Farran, Sue 14

fees 175

Finland 77, 79, 89

fish farm 12

fish harvesting management 221

fish species: anadromous/catadromous

177–179, 181; conservation 175,

177

fishing and hunting methods 8, 145,

147, 343

fishing vessels 45, 167–168, 172, 175,

180–181, 235, 290–291, 307

fjords 8, 138

food security 12–13 foreign nationals 159, 163, 229,

308–309, 346

Foreshore and Seabed Act 2004

142–143

Fox-Decent, Evan 66

FPIC see free, prior, and informed consent free, prior, and informed consent

(FPIC) 63, 77, 107, 116–120, 135,

146–149, 342–343

freedom of fishing 45, 47, 153, 179–184

Fuchs, Christine 246

GAIRS see generally accepted international rules and standards Gambel, Ray 266

generally accepted international rules

and standards (GAIRS) 194, 214

353

Geneva Conventions 155–157, 161, 185

Geneva Conventions on the Law of the

Sea 16, 185; see also LOSC

Geneva Declaration on Human Rights

as Sea (GDHRAS) 126

Germany 290, 292

Gilbert, Jérémie 32, 134

Global North/South 28

God 33, 301

Great Barrier Reef 216

Greece 200–201 Greenland: Inuit first catch celebration 8

Grotius, Hugo 45–46 Hague Codification Conference 155

Hamilton, Robert 48

harbors 34, 158

Harris, Douglas Colebrook 20

Harrison, James 238

Higgins, Rosalyn 26

high seas fishing 179, 184

Hilborn, Ray (et al 2001) 224

Holocaust 49

HRBA see human rights-based approach HRC see Human Rights Committee Human Rights at Sea (HRAS) 126

Human Rights Committee (HRC):

practice of self-determination 76–79;

rights to culture protection 85–87,

89–90, 93, 101, 119, 132–135

human rights laws 344

human rights-based approach (HRBA) 19, 24–25 humanity 33–34, 190–191, 268

hunter-gatherer societies 37, 58

IACHR see Inter-American Commission on Human Rights IACtHR see Inter-American Court of Human Rights ICCPR see International Covenant on Civil and Political Rights Iceland 145, 156, 162, 274–275, 278,

292; see also case law

ICESCR see International Covenant on Economic, Social, and Cultural Rights ICJ see International Court of Justice ICRW see International Convention for the Regulation of Whaling individual transferable quotas (ITQs)

11, 142, 144, 172

354

Index

ILO see International Labor Organization ILO Convention see Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169) IMO see International Maritime Organization impact assessment studies 107, 114, 148, 226 Indian Act 85–86 Indigenous peoples: Apirana Mahuika (Maori) 87, 131, 133, 135; challenges faced 4, 10–11, 18; cultural inferiority 53–54, 60, 112; cultural revitalization 266, 270; displacement 12, 15; Inuit 7–8, 43–44, 238, 262, 264, 275, 278; legal status of 242, 321; Makah Indians 267; Native Hawaiian 216; Ogiek/Okiek 81, 103; Ogoni 80; Poma Poma (Aymara) 93, 119, 135; putting up fish 7; Raizale 315–318, 322; right to harvest marine mammals 221, 231, 236, 239; rights to land/natural resources 71, 106, 133–134; rights to marine space/ resources 15–18, 29–30, 71, 122, 128, 145, 154; salmon ceremony 7; saltwater peoples 5, 51, 131; Sami 76–77, 79, 86–87, 90, 132, 146; seafood consumption 6; the UN era 31, 49 indigenous-specific human rights instruments: cultural integrity 84–85, 88, 94, 270, 343; equality/non­ discrimination 108, 141; evolution 60, 64, 66; rights of ownership 95–96, 99, 136; self-determination right 128 individual transferable quotas (ITQs) 11, 142, 144, 172 Indonesia: archipelagic waters 161, 294, 296; memorandum of understanding 323–326, 339; PNG agreement 331–332, 334, 337 Industrial revolution 46 inequality 23 inter alia (among other things): challenges 10–11, 18, 25; conservation measures 14, 136, 167, 172–173, 175, 181, 222 (see also

MPAs); lack of recognition 10, 270; shipping activities 13, 214–215; State interventions 11 Inter-American Commission on Human Rights (IACHR) 65, 102–103 Inter-American Court of Human Rights (IACtHR) 65, 91–92, 101–103, 110, 119 internal waters: marine mammal conservation 234; rights and obligations 157–160, 203–205, 211, 214; territorial limits 124; traditional activities 138, 163–164 International Convention for the Prevention of Pollution from Ships (MARPOL) 215 International Convention for the Regulation of Whaling (ICRW): catch limits/quotas 260, 262–263, 266; catch methods 268–269, 272–273; conservation agreements 232, 238, 251, 254–255; freedom of fishing 17, 182 International Convention for the Safety of Life at Sea (SOLAS) 215 International Court of Justice (ICJ): human rights violations 86–87, 89–90, 109; interpretation 19, 26; laws of the sea 180, 199–200 (see also case law); rejection of terra nullius 54–55, 65; resettlement 129; self-determination resolution 50 International Covenant on Civil and Political Rights (ICCPR): human rights agreements 59–60, 72–73, 76–77, 123; human rights law 145, 196–197 International Covenant on Economic, Social, and Cultural Rights (ICESCR): cultural rights 87, 90, 93; human rights treaty 59–60; non­ discrimination 109; right to benefit from scientific progress 133; right to self-determination 72–73, 79–80, 82 International Labor Organization’s (ILO): Article 13(2), land/marine space 137–139, 343; see also ILO Convention international law: general 187, 191–193, 195, 201, 228, 305, 308, 313, 316; classical period 30–31, 35–36, 38; customary 21, 25, 46,

Index 64–65, 120, 127, 136, 149, 155, 195, 273, 289, 306–308, 316; evolution of 29–31, 37, 49, 55, 62, 66, 101, 201, 344; general rules 195, 228, 292, 305; peoples-focused 21; relevant rules 194, 198, 200, 202, 272; norms 23, 63, 193–196, 213, 234 International Maritime Organization (IMO): navigation management, 230criteria 209–215, 218, 230, 345 International Tribunal on the Law of the Sea (ITLOS) 170, 190 International Whaling Commission (IWC): catch quotas 263–267; law of the sea 236, 238–239; mandates 254–255, 268; objectives 259–261; sustainability 262; Working Group 257–258 Ireland 162 Islamic law 301–302, 310 Island of Palmas 40–42, 44 ITLOS see International Tribunal on the Law of the Sea ITQs see individual transferable quotas IWC see International Whaling Commission Jackson, Sue E 11 Japan 162, 251–252 Jensen, Øystein 208 Johannes, RE 47 Joint Border Committee (JBC) 333 joint ventures 175, 213, 220 Kenya 81, 92, 103; see also case law Kitok, Ivan 86–87, 89 Koskenniemi, Martti 42 Lancaster House Agreement 303–304 Lancaster House Undertakings 303–306, 311 land: includes marine space 10–11, 27, 128, 136–137, 141, 149; Indigenous rights 5, 27, 32, 38, 56, 99, 333; vacant, unoccupied 39, 56 Latin America 165, 264, 322 law of nations 36–37, 44, 48, 66, 291 law of the sea: areas to be avoided 212, 215, 218 (see also PSSA); codification 155; history 154; human rights law and 17–18, 23, 29, 185–186, 193;

355

interactions with Indigenous peoples 203, 344 (see also LOCS); marine living resources 16, 153 League of Nations 52, 155, 200 LOSC see UN Convention on the Law of the Sea Lovelace, Sandra 85–87 Malaysia 294, 296 Maori (New Zealand) 131, 142–143 mare nullius (Indigenous rights to open seas) 44, 47–48, 55–56, 58 marginalization 4, 10, 15, 19, 52, 108 Marine and Coastal Area Act 143 marine areas: as social and cultural space 8, 289 marine fisheries 131, 145 marine living resources (MLRs): conservation/management rights 177, 180, 183–184, 218; cultural right 3, 130; property rights 11, 136, 140–142, 145–146, 343; rights in maritime zones 157, 229; subsistence 6–7, 128, 130, 219, 221, 231; unregulated harvest 6–7, 9–10, 13, 16, 29, 130, 134, 149, 177, 223, 343 marine mammals 231; conservation agreements 251–253; export/import 240–244; extinction concerns 231, 240, 246–248, 251, 259, 269; Indigenous rights to harvest 17, 218, 233–234, 239, 251; LOSC rules 234; taxonomy 233–234; trade regulations 239–246 marine protected areas (MPAs) 14, 147, 173, 225 marine renewable energy development (MRE) 12–13 marine resources: living/non-living 3, 51, 286; rights to 15, 47, 122, 128, 141, 143, 153, 341; significance 4–5 marine space 16–17, 29–30, 38–40, 47–48, 228, 342 maritime boundary: agreement 332, 337–340; delimitation 17–18, 286, 298, 323, 347 maritime jurisdiction 45, 57, 327 maritime zones: archipelagic waters 153, 157–158, 293, 306; conservation 219, 234; human rights laws 124–125; State sovereignty 184–185,

356

Index

188, 205, 229, 302; traditional

fishing rights 285, 290, 300, 311

Marlborough Sound 142

memorandum of understanding (MoU)

27, 324–325

Mexico 78, 80

MLRs see marine living resources

morality 38

Morgera, Elisa 238

MPAs see marine protected areas

Papahānaumokuākea Marine National Monument 216

Papal Bull 31–32, 44

Papua New Guinea (PNG) 161,

216–217, 230, 327, 347

Particularly Sensitive Sea Area (PSSA):

guidelines 218, 230; navigation

management 213–215

patrimonial sea 165

PCIJ see Permanent Court of

International Justice

NAMMCO Agreement see Agreement Permanent Court of International Justice

on Cooperation in Research, (PCIJ) 42–44, 289–290

Conservation and Management of Permanent Forum on Indigenous Issues

Marine Mammals in North Atlantic (PFII) 2010 Report 8

natural law 33–38, 66

permanent sovereignty over natural

natural resources: human right-based

resources (PSNR) 50–51, 160, 163

approach to 12, 19, 24, 172, 227,

Peru 90, 93

322; international doctrines 38, 58,

Philippines 40, 80, 161, 239, 307–308

71; property rights 94–97, 104–105

Poland 290

nautical miles (nm) 48, 57, 154, 156,

pollution 12–13, 208, 211–212, 219

159, 165, 179, 252, 285, 323

Pope Alexander VI 31

New Zealand 80, 142–143

ports 158, 300

Nicaragua 80 101–102; see also case

Portugal 31, 44, 125

law

positivist international law 35, 37–38,

Nietschmann, Bernard Q 8

44, 66

nm see nautical miles

private property rights 11, 45–46,

non-detriment finding (NDF) 245

56–57, 97, 99, 289

Northwestern Hawaiian Islands

privatization of ocean space 11

(NWHI) 216

property rights: cultural 71, 83, 91,

Norway 76, 132, 146, 204, 274–275,

94–95; limitations 140; non­ 276, 278, 291; see also case law

discrimination 59, 141; traditional

land 99–103

obligations: archipelagic waters

Protected Zone (PZ) 327, 327–331 161–164; international waters/

PSNR see permanent sovereignty over territorial sea 158; MLRs in maritime

natural resources zones 153, 157–158, 165; relating

PSSA see Particularly Sensitive to right to culture 93–94; species

Sea Area conservation and management 177,

179, 233–234

Red Sea Islands 297–298, 300

occupation: effective 38–42, 44; of regional fisheries management

indigenous lands 21, 32–33

organizations (RFMOs) 181–183

ocean grab/grabbing 14, 148

reindeer herding 86–87, 89

offshore islands 158, 324

Reindeer Husbandry Act 86–87

offshore oil exploration/extraction

remuneration 175

12–13, 103, 107, 125, 140, 148, 330 resource development projects 148, 213

oppression 20, 23, 33

restrictions: catch limits 144, 147,

Organization of American States (OAS)

322, 325; fur seal hunting 252; on

64–65

harvesting 221; navigational 212,

OSPAR Arbitration 198–199

214; property right 140–141; right

overfishing 12

to culture 86–87, 134; whaling 256,

Oxman, Bernard H 210

266, 269

Index RFMOs see regional fisheries management organizations right of access 58, 213, 311, 315 right to consultation 71, 113–115, 146, 261, 273, 342 right to consultation and participation 61, 71, 113–115, 120, 149, 261, 274, 330, 334, 342 right to cultural integrity 63–64, 71, 82, 84, 149; obligation of States 93–94, 219 right to culture: as a human right 59, 82–88; illegitimate interference 134, 136 right to equality/non-discrimination 63, 107–111, 141–142, 146, 342 right to marine space 136 right to non-discrimination 52, 59, 71, 110–113, 141, 144–145, 149 right to self-determination: human right norm 71; human rights law 74; in marine space/resouces 128–129, 149, 194 Russia 80, 144, 191, 197, 251–252 safety of navigation 208–209 Scarborough Shoal 307–308, 310–311 scarcity of resources 45–46 sea ice 13, 137 sea territories 8, 137, 140, 342 seabed: access to 142–143, 154, 157, 159, 166, 326–327; exploitation 139–140; marine resources 3, 57 Secher, Ulla 56 Selden, John 45, 57 Sharp, Nonie 57–58 Skagestad, Gunnar 276 slavery 32, 188 Solomon Islands 334–338 South China Sea Tribunal 195, 219, 307, 310, 312, 317, 320 sovereign rights: coastal 39, 48, 124, 145, 165–166, 293, 346; marine resources 153–154; obligations 169–170, 176–177, 212 Spain 31, 34, 41, 44, 54–55, 212 Spanish colonizers 32, 34 spirituality 9–10, 84 State sovereignty 36, 186 statehood 37 straight baselines 158, 204–205

357

Study on the Problem of Discrimination against Indigenous Populations (Cobo Study) 4–5, 60–62 sub-surface resources 106–107, 140; see also seabed surplus resources 175, 185, 229, 311–312, 339, 346–347 Sweden 42, 76–77, 80, 271, 291; see also case law TAC see total allowable catch Tanaka, Yoshifumi 208 terra nullius (territories without a master/nobody’s land): doctrines 15, 21, 38–42, 44, 48, 54–56, 65; occupation 55 territorial integrity 48, 129 territorial sea: jurisdiction 154, 156, 160; maritime zones 124, 153, 157–158, 184; territorial limits 122–124; TFRs 138, 297, 319 territorial use rights for fisheries (TURFs) 142, 173 territory: cessation 55; definition of 5, 8; sovereignty 38–42, 44; traditional 89, 105, 140 TFRs see traditional fishing rights Third World States: concerns 19–20; international law of 22–23, 25, 27 third-world approach to international law (TWAIL): HRBA 24; international law compliance 19–20; historicization 28–29; methodology 25–29; objectives 21–23 Torres Strait Islanders 8, 132, 206, 216–217 Torres Strait Joint advisory Council (TSJAC) 330 Torres Strait Treaty 206, 327, 330, 334–338, 347 total allowable catch (TAC) 172, 174, 176, 181, 235, 257 traditional activities: adverse effects 13, 135, 169, 212, 221–222, 329; as basis for subsistence 97, 131, 138, 321; cultural rights 82, 89, 287, 327–328 traditional fishing grounds: adverse effects on 11–13; conservation measures 47; Filipino fishermen 307; Indigenous peoples rights 138–139,

358

Index

142, 146–147, 225; safety protocols 209

traditional fishing rights (TFRs): basic

characteristics 227–228, 285–286;

bilateral practices 323, 337;

continuity 290–291, 293, 297, 317,

347; within the EEZ 310; maritime

claims 323; recognition of 17, 227,

295, 310, 312, 320, 339, 349;

territorial sea 297; vested rights 289

Traditional Inhabitants’ Meeting (TIM)

330

traditional lands: economic activity 76,

80–81, 88, 91–92; property rights

56, 71, 94–95, 99, 104, 113, 128,

136–140

treaty: cross-referencing 193, 198, 203,

228, 345; systemic integration 193,

198, 203, 345

treaty monitoring bodies: cultural

rights 83–84, 89, 94; discrimination

109, 111; jurisprudence 27, 60, 64,

71, 94, 104; right to consultation

and participation 115; right to

self-determination 76, 81; rights to

marine space/resources 122, 128,

130, 136, 141, 149

Treaty of Limits 1858 201

Treaty of Paris 41

Treaty of Tordesillas 31, 44

Treaty of Waitangi 131, 142

Treaty of Westphalia 35–36 Treves, Tullio 189–190 Tribunal see specific tribunal (i.e., South China Sea) Trinidad and Tobago 313–314; see also case law Truman proclamations 154

TURF see territorial use rights for fisheries TWAIL see third-world approach to international law UDHR see Universal Declaration of Human Rights Ulfstein, Geir 106

UN Charter see United Nations Charter UN Conference on the Law of the Sea:

UNCLOS 202; UNCLOS I 155–156,

161; UNCLOS II 156; UNCLOS III

157, 161, 164, 194, 317

UN Convention on the Law of the

sea (LOSC): adoption of 1982 57,

157–159; constitution for the ocean

153, 305, 307; marine mammal

conservation 234; provisions

160–163, 167, 170–174, 180, 196,

212, 228; rights to marine space/

resources 16; territorial sea rights

297, 303, 308, 310

UN Declaration on the Rights of

Indigenous Peoples (UNDRIP):

adoption of 62–65; cultural rights

84–85, 88–89, 131, 226; freedom

from discrimination 108; human

rights violations 271; indigenous­ specific human rights law 49, 75;

natural resources 105; right to access

of information/decision making 114,

147, 273; rights of consent 117–119;

territorial rights 95–97, 138, 140,

318, 321

UN Division for Ocean Affairs and the

Law of the Sea (DOALOS) 236

UN Economic and Social Council

(ECOSOC) 62

UN Fish Stocks Agreement (UNFSA) 16,

178, 182–183, 221–225, 286

UN Food and Agriculture Organization

(FAO): implementation of voluntary

guidelines 224–225, 227, 229; right

to harvest marine resources 346

UN Food and Agriculture Organization

(FAO): Code of Conduct for

Responsible Fisheries 225, 227, 229,

346

UN General Assembly (UNGA):

decolonization laws/human rights

55, 63–64; land/ocean grabbing 15;

resolutions 26, 50–51, 71

UN Sub-Commission on Prevention of

Discrimination and Protection of

Minorities 62

UNCLOS see UN Conference on the Law of the Sea UNDRIP see UN Declaration on the Rights of Indigenous Peoples UNFSA see Fish Stocks Agreement UNGA see UN General Assembly United Kingdom (UK) 129, 252, 292

United Nations (UN) 4; decolonization process 154; establishment of 49;

Index Special Rapporteur 12, 15, 132,

144, 146; Study on the Problem of

Discrimination against Indigenous

Populations 4 (see also Cobo Study);

Study on the Relationships between

Indigenous Peoples and the Pacific

Ocean 138

United Nations Charter (UN Charter)

50, 71, 191, 194

United States (US) 40, 154, 212, 252,

303

Universal Declaration of Human Rights

(UDHR) 59, 99, 108–109, 313, 322

Valencia, Mark J 18

VanderZwaag, David 18

Vattel, Emmerich de 36, 46

VCLT see Vienna Convention on the Law of Treaties Vienna Convention on the Law of Treaties (VCLT): international law,

359

interpretation 19, 88, 123, 182,

198–200, 202, 228, 272

violence 23

Vitoria, Francisco de 33–34 Voluntary Guidelines for Securing

Sustainable Small-Scale Fisheries

(SSF Guidelines) 226–227, 229,

346

walrus 241, 278

Western States 20, 25

whaling: barter/trade 258; humpback

262–264, 271; minke 240, 248, 251,

262, 271; regulation of 253

Wiessner, Siegfried 49

Willmann, Rolf (et al 2017) 24

Working Group on Indigenous

Populations (WGIP) 62

World War II 35, 154

Xanthaki, Alexandra 66, 137