Legal Framework Behind Biocultural Rights 177
10 It is to be noted that two decisions of the Inter-American Court on Human Rights
went the opposite direction. In the 2005 Moiwana Village v. Suriname case (IACtHR,
Case of the Moiwana Community v. Suriname, Series C No. 124 (15 June 2005)), and
the 2007 Saramaka People v. Suriname case (IACtHR, Case of the Saramaka People v
Suriname, Series C No 172 (28 November 2007)), the Court treated two local communities composed of descendants of Africans forcibly taken to South America during the 17
th -century colonization as holders of the same rights of indigenous peoples.
The Court employed the same rationale used for the Mayagna (Sumo) Awas Tingni
Community v. Nicaragua case that dealt with indigenous peoples (IACtHR, Nicaragua, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Series C No. 79
(31 August 2001)). However, besides similar special cases, local communities cannot
yet be considered holders of indigenous peoples’ rights.
11 Among which, the 1966 Covenants on Civil and Political Rights, and on Economic,
Social and Cultural Rights; the 1966 Convention on the Elimination of All Forms
of Racial Discrimination; the 1979 Convention on the Elimination of All Forms of
Discrimination Against Women.
12 An exception may be found in Art. 27 of the International Covenant on Civil and
Political Rights that provides for both individual and collective rights: “persons
belonging 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 practise their own
religion, or to use their own language” (emphasis added).
13 See, for example, the CBD Strategic Plan for 2011–2020 (UNEP/CBD/COP/
DEC/X/2 29 October 2010), target 14 and 18; Decisions XII/12 on the implementation of the program of work on Article 8( j) and related provisions and mechanisms
to promote the effective participation of indigenous and local communities (UNEP/
CBD/COP/DEC/XII/12 13 October 2014); Decision VII/28 on Protected Areas
and art. 8( j) (UNEP/CBD/COP/DEC/VII/28 13 April 2004); the 2004 Akwé: Kon
Voluntary Guidelines (UNEP/CBD/COP/DEC/VII/16 13 April 2004) and the
2006 Voluntary Guidelines on Biodiversity-inclusive Impact Assessments (UNEP/
CBD/COP/DEC/VIII/28 15 June 2006) (also see Morgera, 2016; 2020).
14 On the interpretation of these stipulations, see Chapter 1.
15 A further differentiating feature of local communities is its “traditional” character
(see Sajeva et al., 2019, p. 15).
16 See Larking (2019); and the official website at https://viacampesina.org/en/. On the
unique process that led to the adoption of UNDROP through the “almost” direct
representation of agrarian movements, see Claeys (2019).
17 On the difference between land ownership and land tenure, see Sajeva et al. (2019),
“Land Tenure”.
18 Mostly within the Covenants on Civil and Political Rights and Economic, Social and
Cultural Rights, but also in the UN Convention on the Elimination of All Forms of
Discrimination Against Women (1979) (see Golay, 2015, pp. 20 et seq.).
19 See Paoloni and Vezzani (2019, p. 24), for a comment on whether UNDROP may
question the universality of human rights by “granting” to a specific category (peasants and local communities) rights which had already been recognized to all human
beings. Interestingly, during the negotiations of UNDROP, the EU acknowledged that
peasants “make an important contribution to the protection of the environment” but
expressed concern about recognizing new human rights to local communities because
they “would undermine the universality of human rights” (EU General Statement at
the 4th Session of the Open-Ended Intergovernmental Working Group on UNDROP,
18–19 May 2017). This statement illuminates a concern about those who do not belong
to local communities who would be excluded from these new rights. On the evolution
on UNDROP as a claim for non-exclusion of existing human rights, to a claim for the
recognition of new rights, see Edelman & James (2011).
20 54 states abstained and 8 voted against the adoption.
10 It is to be noted that two decisions of the Inter-American Court on Human Rights
went the opposite direction. In the 2005 Moiwana Village v. Suriname case (IACtHR,
Case of the Moiwana Community v. Suriname, Series C No. 124 (15 June 2005)), and
the 2007 Saramaka People v. Suriname case (IACtHR, Case of the Saramaka People v
Suriname, Series C No 172 (28 November 2007)), the Court treated two local communities composed of descendants of Africans forcibly taken to South America during the 17
th -century colonization as holders of the same rights of indigenous peoples.
The Court employed the same rationale used for the Mayagna (Sumo) Awas Tingni
Community v. Nicaragua case that dealt with indigenous peoples (IACtHR, Nicaragua, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Series C No. 79
(31 August 2001)). However, besides similar special cases, local communities cannot
yet be considered holders of indigenous peoples’ rights.
11 Among which, the 1966 Covenants on Civil and Political Rights, and on Economic,
Social and Cultural Rights; the 1966 Convention on the Elimination of All Forms
of Racial Discrimination; the 1979 Convention on the Elimination of All Forms of
Discrimination Against Women.
12 An exception may be found in Art. 27 of the International Covenant on Civil and
Political Rights that provides for both individual and collective rights: “persons
belonging 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 practise their own
religion, or to use their own language” (emphasis added).
13 See, for example, the CBD Strategic Plan for 2011–2020 (UNEP/CBD/COP/
DEC/X/2 29 October 2010), target 14 and 18; Decisions XII/12 on the implementation of the program of work on Article 8( j) and related provisions and mechanisms
to promote the effective participation of indigenous and local communities (UNEP/
CBD/COP/DEC/XII/12 13 October 2014); Decision VII/28 on Protected Areas
and art. 8( j) (UNEP/CBD/COP/DEC/VII/28 13 April 2004); the 2004 Akwé: Kon
Voluntary Guidelines (UNEP/CBD/COP/DEC/VII/16 13 April 2004) and the
2006 Voluntary Guidelines on Biodiversity-inclusive Impact Assessments (UNEP/
CBD/COP/DEC/VIII/28 15 June 2006) (also see Morgera, 2016; 2020).
14 On the interpretation of these stipulations, see Chapter 1.
15 A further differentiating feature of local communities is its “traditional” character
(see Sajeva et al., 2019, p. 15).
16 See Larking (2019); and the official website at https://viacampesina.org/en/. On the
unique process that led to the adoption of UNDROP through the “almost” direct
representation of agrarian movements, see Claeys (2019).
17 On the difference between land ownership and land tenure, see Sajeva et al. (2019),
“Land Tenure”.
18 Mostly within the Covenants on Civil and Political Rights and Economic, Social and
Cultural Rights, but also in the UN Convention on the Elimination of All Forms of
Discrimination Against Women (1979) (see Golay, 2015, pp. 20 et seq.).
19 See Paoloni and Vezzani (2019, p. 24), for a comment on whether UNDROP may
question the universality of human rights by “granting” to a specific category (peasants and local communities) rights which had already been recognized to all human
beings. Interestingly, during the negotiations of UNDROP, the EU acknowledged that
peasants “make an important contribution to the protection of the environment” but
expressed concern about recognizing new human rights to local communities because
they “would undermine the universality of human rights” (EU General Statement at
the 4th Session of the Open-Ended Intergovernmental Working Group on UNDROP,
18–19 May 2017). This statement illuminates a concern about those who do not belong
to local communities who would be excluded from these new rights. On the evolution
on UNDROP as a claim for non-exclusion of existing human rights, to a claim for the
recognition of new rights, see Edelman & James (2011).
20 54 states abstained and 8 voted against the adoption.