Indigenous Rights and the Protection of Biodiversity: A Study of Conflict and Reconciliation in International Law
Indigenous ways of living are typically described as being harmonious with—if not instrumental for—the protection of the environment. This dissertation moves from the quite different evidence that the protection of biodiversity may encroach on indigenous rights. More specifically, the legal regime of the Convention on Biological Diversity (CBD) establishes obligations for its Parties whose interpretation and/or implementation may lead to the violation of indigenous rights. In this context, this research identifies potential conflicts between the obligations incumbent on CBD Parties pursuant to the CBD and its Nagoya Protocol on access and benefit-sharing (ABS) and those stemming from human rights treaties and protecting indigenous rights. This thesis also develops an interpretative approach aiming to prevent or solve conflicts failing the applicability of hierarchy, lex specialis, or lex posterior rules to the relationship between indigenous rights and the protection of biodiversity. This dissertation argues that systemic interpretation offers a valuable interpretative tool to incorporate the rights of indigenous peoples into the CBD regime. Beyond substantive and procedural indigenous rights, another applicable rule between CBD Parties is the principle of self-determination, which this thesis derives from a teleological interpretation of indigenous rights. The dissertation concludes that conflicts between indigenous rights and obligations established in the CBD regime cannot be solved in the abstract but rather need a case-bycase approach. Evidence from two thematic case studies—one on ABS and the other on conservation—shows that indigenous rights and self-determination allow interpreters both to choose between competing interpretations of the CBD regime and to privilege those interpretations that do not threaten the cultural distinctiveness of indigenous peoples. Successful examples of applying this interpretative approach in the thesis concern issues such as the ownership of genetic resources, the notion of traditional knowledge, and the articulation of concrete forms of participation in the application of CBD-related obligations. These findings have a broader significance for the debate on human rights and the environment, the interplay between self-determination and permanent sovereignty over natural resources, as well as for the harmonization of specialized regimes with the rights of indigenous peoples.
Networked Digital Library of Theses and Dissertations