Legal Framework Behind Biocultural Rights 175
Limiting a set of indigenous peoples and local communities’ human rights to
environmental considerations raises many concerns. Is it fair? Or is it an instrument to shift burdens and responsibilities, once more, to the most vulnerable
and less environment-detrimental peoples of the world? People or community
remains, of course, free to renounce the duties biocultural rights come along
with, but this will be at the cost of also renouncing the rights the biocultural
rights basket contains.
To fully comprehend the implications of biocultural rights, regard needs to
be given to the distinction, set out above, between indigenous peoples and local
communities. While indigenous peoples hold indigenous rights – that are not
linked to environmental considerations (be sustainable, be relevant for the conservation of biodiversity, etc.) – local communities’ rights are still strongly conditional on their contribution to environmental considerations. This difference
places them in dissimilar positions vis-à-vis biocultural rights claims.
Biocultural rights, as a framework, as an idea, as a right de jure condendo, are a
card that could be used by local communities to acquire new rights in – or obtain
stronger protection of those already recognized by – international and national
laws. Local communities may conflate their different needs, interests, and desires
into biocultural rights, accepting their environmental conditionality as an old
“condition”. One that is already present in the other collective rights, they are
being recognized by international law.
Positive notes may be there for indigenous peoples as well. It is still often the case
that states do not recognize indigenous peoples’ rights or deny indigenous status
to any indigenous people residing in its territory for political reasons, linked to the
fear of self-determination (most often unnecessarily, as indigenous peoples claim
internal self-determination). Compared with indigenous peoples’ rights, biocultural rights’ lack of emphasis on political issues makes them a more neutral tool visà-vis government still imbued with colonial hatreds, afraid of secessionist claims,
and determined to deny the existence of (certain) indigenous peoples in their territories.
32 On such occasions, biocultural rights could be strategically employed as a
tool to require at least some – environmentally conditional – p rotection. However,
and importantly, biocultural rights for indigenous peoples must remain a secondbest route to be used only when and if indigenous rights are, for one reason or
another, impaired, ignored, or threatened by environmental considerations (such
as the creation of an important protected area). Indigenous peoples’ rights already
include all the rights found in the biocultural rights basket and are not strictly
conditional or limited to the protection of the environment: they are the most
advantageous route to be used by indigenous peoples.
Besides the strategic considerations that indigenous peoples and local communities need to make when deciding whether to claim biocultural rights or
not, it must be acknowledged that the concept of biocultural rights proposes a
new way to combine human and environmental considerations. They incorporate both human’s and nature’s needs into one, powerful, legal construct: rights
and their foundations. In this way, they suggest a possible route to move in the
Limiting a set of indigenous peoples and local communities’ human rights to
environmental considerations raises many concerns. Is it fair? Or is it an instrument to shift burdens and responsibilities, once more, to the most vulnerable
and less environment-detrimental peoples of the world? People or community
remains, of course, free to renounce the duties biocultural rights come along
with, but this will be at the cost of also renouncing the rights the biocultural
rights basket contains.
To fully comprehend the implications of biocultural rights, regard needs to
be given to the distinction, set out above, between indigenous peoples and local
communities. While indigenous peoples hold indigenous rights – that are not
linked to environmental considerations (be sustainable, be relevant for the conservation of biodiversity, etc.) – local communities’ rights are still strongly conditional on their contribution to environmental considerations. This difference
places them in dissimilar positions vis-à-vis biocultural rights claims.
Biocultural rights, as a framework, as an idea, as a right de jure condendo, are a
card that could be used by local communities to acquire new rights in – or obtain
stronger protection of those already recognized by – international and national
laws. Local communities may conflate their different needs, interests, and desires
into biocultural rights, accepting their environmental conditionality as an old
“condition”. One that is already present in the other collective rights, they are
being recognized by international law.
Positive notes may be there for indigenous peoples as well. It is still often the case
that states do not recognize indigenous peoples’ rights or deny indigenous status
to any indigenous people residing in its territory for political reasons, linked to the
fear of self-determination (most often unnecessarily, as indigenous peoples claim
internal self-determination). Compared with indigenous peoples’ rights, biocultural rights’ lack of emphasis on political issues makes them a more neutral tool visà-vis government still imbued with colonial hatreds, afraid of secessionist claims,
and determined to deny the existence of (certain) indigenous peoples in their territories.
32 On such occasions, biocultural rights could be strategically employed as a
tool to require at least some – environmentally conditional – p rotection. However,
and importantly, biocultural rights for indigenous peoples must remain a secondbest route to be used only when and if indigenous rights are, for one reason or
another, impaired, ignored, or threatened by environmental considerations (such
as the creation of an important protected area). Indigenous peoples’ rights already
include all the rights found in the biocultural rights basket and are not strictly
conditional or limited to the protection of the environment: they are the most
advantageous route to be used by indigenous peoples.
Besides the strategic considerations that indigenous peoples and local communities need to make when deciding whether to claim biocultural rights or
not, it must be acknowledged that the concept of biocultural rights proposes a
new way to combine human and environmental considerations. They incorporate both human’s and nature’s needs into one, powerful, legal construct: rights
and their foundations. In this way, they suggest a possible route to move in the