Scope and Objective
When indigenous people or a local community decides to engage in the creation of, for instance, a Biocultural Community Protocol, it enters the realm of
international, regional, and national laws with the precise intention of becoming
an actor more conscious of its rights, and better able to vindicate their respect
and implementation. However, choosing which path to follow in terms of
rights vindication is not always easy nor straightforward. Currently, there are
an increasing number of international and national laws, policies, court cases,
declarations, and guidelines concerning indigenous peoples, local communities,
and the protection of the environment, which provide rights regarding access to
land, benefit-sharing, traditional knowledge, carbon emissions, protected areas,
and much more. These rights are essentially fragmented (ILC Conclusions, 2006;
Payandeh, 2015): addressed by different bodies, found in diverse sources ( Jonas,
2020, p. 4; Jonas et al., 2014), and differently treated by different courts (Abrusci,
2017). Consequently, indigenous peoples and local communities must engage
with a plethora of legal sources to obtain protection for interconnected aspects of
their lives which are all part of the same biocultural landscape.
The idea of biocultural rights, which was developed predominantly by Sanjay
Kabir Bavikatte (2014; Bavikatte & Bennet, 2015), strives to look at and deal
with the overall biocultural landscape of indigenous peoples and local communities, conflating many of the different rights they need to promote their
self-government and the conservation of their cultural identities. This chapter
explores the pros and cons of claiming biocultural rights, but it does so separately
for indigenous peoples and for local communities (Sajeva, 2018). They appear,
in fact, as different subjects in international law, whose positions are somehow
similar but sufficiently diverse to require distinct considerations.
6
THE LEGAL FRAMEWORK BEHIND
BIOCULTURAL RIGHTS
An Analysis of Their Pros and Cons for Indigenous
Peoples and for Local Communities
Giulia Sajeva
1
DOI: 10.4324/9781003172642-7
When indigenous people or a local community decides to engage in the creation of, for instance, a Biocultural Community Protocol, it enters the realm of
international, regional, and national laws with the precise intention of becoming
an actor more conscious of its rights, and better able to vindicate their respect
and implementation. However, choosing which path to follow in terms of
rights vindication is not always easy nor straightforward. Currently, there are
an increasing number of international and national laws, policies, court cases,
declarations, and guidelines concerning indigenous peoples, local communities,
and the protection of the environment, which provide rights regarding access to
land, benefit-sharing, traditional knowledge, carbon emissions, protected areas,
and much more. These rights are essentially fragmented (ILC Conclusions, 2006;
Payandeh, 2015): addressed by different bodies, found in diverse sources ( Jonas,
2020, p. 4; Jonas et al., 2014), and differently treated by different courts (Abrusci,
2017). Consequently, indigenous peoples and local communities must engage
with a plethora of legal sources to obtain protection for interconnected aspects of
their lives which are all part of the same biocultural landscape.
The idea of biocultural rights, which was developed predominantly by Sanjay
Kabir Bavikatte (2014; Bavikatte & Bennet, 2015), strives to look at and deal
with the overall biocultural landscape of indigenous peoples and local communities, conflating many of the different rights they need to promote their
self-government and the conservation of their cultural identities. This chapter
explores the pros and cons of claiming biocultural rights, but it does so separately
for indigenous peoples and for local communities (Sajeva, 2018). They appear,
in fact, as different subjects in international law, whose positions are somehow
similar but sufficiently diverse to require distinct considerations.
6
THE LEGAL FRAMEWORK BEHIND
BIOCULTURAL RIGHTS
An Analysis of Their Pros and Cons for Indigenous
Peoples and for Local Communities
Giulia Sajeva
1
DOI: 10.4324/9781003172642-7