The Sovereign Stewards of Biodiversity 293
Atrato River case demonstrate,
53 references to duties remain too ambiguous,
and there is no definitive conclusion that IPLCs are the bearers of a (legally
enforceable) duty of stewardship. The Code of Ethical Conduct states that “[t]he
traditional stewardship/custody recognizes the obligations and responsibilities of indigenous and local communities to protect and conserve their traditional role as stewards and guardians […]”.
54 Furthermore, the Constitutional
Court of Colombia states that “[biocultural rights] imply that communities must
maintain their distinctive cultural heritage [...]” (“estos derechos implican que
las comunidades deben mantener su herencia cultural distintiva”).
55 We instead contend that both the Code of Ethical Conduct and the Atrato River case are to
be understood as an obligation on States to take all steps necessary to enable
IPLCs to sustain what is seen as their distinctive ethics, beyond the naturalistic
infrastructure.
In reality, the reference to ethic of stewardship is a first way out of the game
of “contiguous and oppositional concepts” (Grear, 2015, p. 83). The concepts
subject/object, mind/body, and nature/culture have provided matrix for modern law and, above all, the basis for modern legal subjectivity. As we have seen,
a pair of “oppositional concepts” that are particularly structuring for BCPs is
the “modern/traditional” typology. The interest of the ethic of stewardship is
to move beyond negativity in which the “modern/traditional” dyad maintains
IPLCs.
The ethic of stewardship makes it possible to give shape and substance to
those who can never be apprehended by the “modern”, those who cannot be
understood without being immediately referred to by its antithesis – namely the
“traditional”; this “traditional” without which the “modern” cannot exist, but
which quite ironically also directly threatens its existence and must be kept “at
bay” (Blaser, 2009, p. 888). Let us put it this way: the “traditional” can only exist
as an indeterminate and reifying category, inevitably destined to remain under the
control of the “modern”.
The whole point of using the “ethic of stewardship” and its power as a concept is to move away from the indeterminacy and reification of the “traditional”
category. It is also more than that; it reinjects positivity and in so doing helps to
clarify the “peoplehood” of “biocultural communities” (Bavikatte & Robinson,
2011). This additional step in the construction of biocultural jurisprudence is
essential. It reemphasises the importance of placing BCPs within a broader theoretical and legal context. Focusing on the bundle of biocultural rights shifts the
attention to legal subjectivation. It brings the debate back to its point of departure. In its wake comes the central question of what it is like to be, act, dwell,
and dream as an indigenous people and a local community, i.e. on what it is like
to be – positively – a subject of biocultural rights.
That the issue arises when the epistemic frameworks of modern law are being
discussed with precedents such as the Atrato and the Whanganui Rivers cases
(Tănăsescu, 2020) should come as no surprise. Just as in the 16th century, when
Atrato River case demonstrate,
53 references to duties remain too ambiguous,
and there is no definitive conclusion that IPLCs are the bearers of a (legally
enforceable) duty of stewardship. The Code of Ethical Conduct states that “[t]he
traditional stewardship/custody recognizes the obligations and responsibilities of indigenous and local communities to protect and conserve their traditional role as stewards and guardians […]”.
54 Furthermore, the Constitutional
Court of Colombia states that “[biocultural rights] imply that communities must
maintain their distinctive cultural heritage [...]” (“estos derechos implican que
las comunidades deben mantener su herencia cultural distintiva”).
55 We instead contend that both the Code of Ethical Conduct and the Atrato River case are to
be understood as an obligation on States to take all steps necessary to enable
IPLCs to sustain what is seen as their distinctive ethics, beyond the naturalistic
infrastructure.
In reality, the reference to ethic of stewardship is a first way out of the game
of “contiguous and oppositional concepts” (Grear, 2015, p. 83). The concepts
subject/object, mind/body, and nature/culture have provided matrix for modern law and, above all, the basis for modern legal subjectivity. As we have seen,
a pair of “oppositional concepts” that are particularly structuring for BCPs is
the “modern/traditional” typology. The interest of the ethic of stewardship is
to move beyond negativity in which the “modern/traditional” dyad maintains
IPLCs.
The ethic of stewardship makes it possible to give shape and substance to
those who can never be apprehended by the “modern”, those who cannot be
understood without being immediately referred to by its antithesis – namely the
“traditional”; this “traditional” without which the “modern” cannot exist, but
which quite ironically also directly threatens its existence and must be kept “at
bay” (Blaser, 2009, p. 888). Let us put it this way: the “traditional” can only exist
as an indeterminate and reifying category, inevitably destined to remain under the
control of the “modern”.
The whole point of using the “ethic of stewardship” and its power as a concept is to move away from the indeterminacy and reification of the “traditional”
category. It is also more than that; it reinjects positivity and in so doing helps to
clarify the “peoplehood” of “biocultural communities” (Bavikatte & Robinson,
2011). This additional step in the construction of biocultural jurisprudence is
essential. It reemphasises the importance of placing BCPs within a broader theoretical and legal context. Focusing on the bundle of biocultural rights shifts the
attention to legal subjectivation. It brings the debate back to its point of departure. In its wake comes the central question of what it is like to be, act, dwell,
and dream as an indigenous people and a local community, i.e. on what it is like
to be – positively – a subject of biocultural rights.
That the issue arises when the epistemic frameworks of modern law are being
discussed with precedents such as the Atrato and the Whanganui Rivers cases
(Tănăsescu, 2020) should come as no surprise. Just as in the 16th century, when