Community Protocols and Biocultural Rights 37
proposed measures or projects, or that, similarly, States will have to provide alternative solutions which would mitigate the negative effects of the proposed plans.
(Barelli, 2018, pp. 253–254)
See also the Case of the Saramaka People v. Suriname (Inter-Am. C.H.R. No. 172, Ser. C
(2007)), para. 134. In the individual communications of the HRComm: Ilmari Länsman
et al. v Finland, Comm No. 511/1992, UN Doc. CCPR/C/52/D/511/1992 (1994);
Ángela Poma v Peru, Comm No. 1457/2006, UN Doc CCPR/C/95/D/1457/2006
(2009). In the reports of the UN Special Rapporteur on the Rights of Indigenous
Peoples: Report of the Special Rapporteur on the situation of human rights and
fundamental freedoms of Indigenous people, James Anaya, A/HRC/12/34 (15 July
2009), para. 47; Report of the Special Rapporteur on the rights of Indigenous peoples, James Anaya, A/HRC/24/41 (1 July 2013), paras 31–36. In the reports of the
Expert Mechanism on the Rights of Indigenous Peoples: Final report of the study on
Indigenous peoples and the right to participate in decision-making, A/HRC/18/42
(17 August 2011), paras 22 and 23.
52 On the progressive extension of the right to FPIC to non-Indigenous communities, see The African Commission on Human and Peoples’ Rights, Resolution on
a Human Rights-Based Approach to Natural Resources Governance - ACHPR/
Res.224(LI)2012; CESCR, China, E/C.12/CHN/CO/2 (13 June 2014), para. 31;
CESCR, Mauritania, E/C.12/MRT/CO/1 (10 December 2012), para. 8; CESCR,
Togo, E/C.12/TGO/CO/1 (3 June 2013), paras 26 (PFIC) and 27 (benefit-sharing).
53 As said (see note 8), criteria used to define Indigenous peoples and local communities tend to overlap (also see African Model Legislation for the Protection of
the Rights of Local Communities, Farmers and Breeders and for the Regulation
of Access to Biological Resources, endorsed by the 68th Ordinary Session of the
Council of Ministers in 1996, Organization of African Unity, https://www.wipo.
int/edocs/lexdocs/laws/en/oau/oau001en.pdf, Article 1). Over the last two decades,
these similarities have justified, on a case-by-case basis, the extension of protection
afforded to Indigenous peoples to local communities whenever there is a “distinct
social, cultural and economic group with a special relationship with its ancestral
territory”, Case of the Saramaka People v Suriname (Inter-Am. C.H.R. No. 172, Ser.
C (2007)), paras 80–84. Progress in domestic legislation has also been significant,
in particular in Ecuador, Brazil, Peru and Colombia (Bessa, 2015; Huarcaya, 2018;
Kania, 2016; Tocancipá Falla & Ramírez Castrillón, 2018). See also Knox (2018,
Framework principle 15).
5 4 Laura Westra has proposed building up a single regime for “land-based communities”, with the “unifying concept for all these disparate groups” being “their land/
culture connection” (Westra, 2013, p. 20). Far-reaching proposals, suggesting the
bestowal of collective rights to land upon any groups showing a specific relationship
with a territory and natural resources, have also been made by Olivier de Schutter
(De Schutter, 2010; De Schutter & Rajagopal, 2019; Morgera et al., 2014, pp. 40–41).
55 Of paramount importance is, indeed, the “right to land” (Article 17), to be read
in conjunction with the “right to adequate food and the fundamental right to be
free from hunger” (Article 15 – see also the allusion to the controversial concept of
“food sovereignty” in the preambular part), the “right to seeds” (Article 19) ( Haugen,
2020), as well as “the right to enjoy their own culture and to pursue freely their
cultural development, without interference or any form of discrimination”. They also
have “the right to maintain, express, control, protect and develop their traditional
and local knowledge, such as ways of life, methods of production or technology,
or customs and tradition” (Article 26.1). The list of right-holders is expansive: not
only “peasants” within the meaning of Article 1.1, but also “any person engaged
in artisanal or small-scale agriculture, crop planting, livestock raising, pastoralism,
fishing, forestry, hunting or gathering, and handicrafts related to agriculture or a
related o ccupation in a rural area” (Article 1.2). It further applies to IPLCs working
proposed measures or projects, or that, similarly, States will have to provide alternative solutions which would mitigate the negative effects of the proposed plans.
(Barelli, 2018, pp. 253–254)
See also the Case of the Saramaka People v. Suriname (Inter-Am. C.H.R. No. 172, Ser. C
(2007)), para. 134. In the individual communications of the HRComm: Ilmari Länsman
et al. v Finland, Comm No. 511/1992, UN Doc. CCPR/C/52/D/511/1992 (1994);
Ángela Poma v Peru, Comm No. 1457/2006, UN Doc CCPR/C/95/D/1457/2006
(2009). In the reports of the UN Special Rapporteur on the Rights of Indigenous
Peoples: Report of the Special Rapporteur on the situation of human rights and
fundamental freedoms of Indigenous people, James Anaya, A/HRC/12/34 (15 July
2009), para. 47; Report of the Special Rapporteur on the rights of Indigenous peoples, James Anaya, A/HRC/24/41 (1 July 2013), paras 31–36. In the reports of the
Expert Mechanism on the Rights of Indigenous Peoples: Final report of the study on
Indigenous peoples and the right to participate in decision-making, A/HRC/18/42
(17 August 2011), paras 22 and 23.
52 On the progressive extension of the right to FPIC to non-Indigenous communities, see The African Commission on Human and Peoples’ Rights, Resolution on
a Human Rights-Based Approach to Natural Resources Governance - ACHPR/
Res.224(LI)2012; CESCR, China, E/C.12/CHN/CO/2 (13 June 2014), para. 31;
CESCR, Mauritania, E/C.12/MRT/CO/1 (10 December 2012), para. 8; CESCR,
Togo, E/C.12/TGO/CO/1 (3 June 2013), paras 26 (PFIC) and 27 (benefit-sharing).
53 As said (see note 8), criteria used to define Indigenous peoples and local communities tend to overlap (also see African Model Legislation for the Protection of
the Rights of Local Communities, Farmers and Breeders and for the Regulation
of Access to Biological Resources, endorsed by the 68th Ordinary Session of the
Council of Ministers in 1996, Organization of African Unity, https://www.wipo.
int/edocs/lexdocs/laws/en/oau/oau001en.pdf, Article 1). Over the last two decades,
these similarities have justified, on a case-by-case basis, the extension of protection
afforded to Indigenous peoples to local communities whenever there is a “distinct
social, cultural and economic group with a special relationship with its ancestral
territory”, Case of the Saramaka People v Suriname (Inter-Am. C.H.R. No. 172, Ser.
C (2007)), paras 80–84. Progress in domestic legislation has also been significant,
in particular in Ecuador, Brazil, Peru and Colombia (Bessa, 2015; Huarcaya, 2018;
Kania, 2016; Tocancipá Falla & Ramírez Castrillón, 2018). See also Knox (2018,
Framework principle 15).
5 4 Laura Westra has proposed building up a single regime for “land-based communities”, with the “unifying concept for all these disparate groups” being “their land/
culture connection” (Westra, 2013, p. 20). Far-reaching proposals, suggesting the
bestowal of collective rights to land upon any groups showing a specific relationship
with a territory and natural resources, have also been made by Olivier de Schutter
(De Schutter, 2010; De Schutter & Rajagopal, 2019; Morgera et al., 2014, pp. 40–41).
55 Of paramount importance is, indeed, the “right to land” (Article 17), to be read
in conjunction with the “right to adequate food and the fundamental right to be
free from hunger” (Article 15 – see also the allusion to the controversial concept of
“food sovereignty” in the preambular part), the “right to seeds” (Article 19) ( Haugen,
2020), as well as “the right to enjoy their own culture and to pursue freely their
cultural development, without interference or any form of discrimination”. They also
have “the right to maintain, express, control, protect and develop their traditional
and local knowledge, such as ways of life, methods of production or technology,
or customs and tradition” (Article 26.1). The list of right-holders is expansive: not
only “peasants” within the meaning of Article 1.1, but also “any person engaged
in artisanal or small-scale agriculture, crop planting, livestock raising, pastoralism,
fishing, forestry, hunting or gathering, and handicrafts related to agriculture or a
related o ccupation in a rural area” (Article 1.2). It further applies to IPLCs working