Human Rights Approaches to Deforestation
Thomas Paintner
LL.M. Program in International and European Law Public International Law Track
Thesis (Final version) Supervisor: Prof. René Lefeber
Abstract
Forests are essential for humans in relation to food and water, livelihoods, cultural identity and climate change. Yet forest area continues to be lost at alarming rates, often accompanied by pollution, violence and displacement of the local population. In a survey of selected rights, this thesis finds that while the potential of a rights approach to combatting deforestation is limited by the fact that humans must generally be affected, land rights and a right to environ-ment, in particular, offer promising prospects in terms of ecological conservation. Proce-dural rights foster an open setting that allows environmental concerns of the population to be integrated in the decision-making process. In a critical analysis, it is argued that despite this potential for environmental protection, human rights need to be embedded in a holistic, eco-logical framework.
Table of Content
Abstract...1
1. Introduction...3
2. Significance of Forests for Humans...3
3. Extent, Causes and Impacts of Deforestation...4
4. Human Rights Standards and Possible Violations...5
4.1. The Relationship Between the Environment and Human Rights...5
4.2. The Relevant Human Rights Protections...6
4.2.1 Autonomous Right to a Healthy Environment?...6
4.2.1.1. A Universal Norm of Customary International Law?...7
4.2.1.2. The Inter-American Human Rights System...7
4.2.1.3. The African Human Rights System...9
4.2.2. First-Generation Human Rights...9
4.2.2.1. Right to Life...9
4.2.2.2. Right to Private Life...12
4.2.3. Second-Generation Rights...13
4.2.3.2. Rights to Food and Water...14
4.2.3.3. Right to Health...15
4.2.3.4. Right to Housing...16
4.2.4. Collective Rights...16
4.2.4.1. Rights to Land and Resources...16
4.2.4.2. Collective Cultural Rights...21
4.2.4.3. Self-Determination...22
4.2.5. Procedural and Environmental Law Dimensions...24
4.2.5.1. Environmental Legal Concepts...24
4.2.5.2. Procedural Dimensions...25 5. Critical Analysis...28 6. Conclusion...29 Bibliography...31 Table of Cases...37 Appendices...40
1. Introduction
Humans have engaged in deforestation for centuries and it has been an environmental concern for decades.1 But as numerous cases before human rights bodies demonstrate, it can also be a human rights issue.2 In fact, the Environmental Justice Atlas currently lists 328 deforestation conflicts, 147 of which fall into the “lawsuits, court cases, judicial activism” category.3 Fur-ther testament to the current relevance of a rights approach are legal developments, namely the Inter-American Court of Human Rights’ (IACtHR) recent Advisory Opinion4 and the adoption of the Escazú Agreement.5 Therefore, this thesis addresses the question of how a rights approach can be an instrument in countering and preventing deforestation, and what the advantages and deficiencies of such an approach are from the viewpoint of environmental protection. To this end, it will start by looking at the role forests play in human life (2.) and what the extent, causes and consequences of deforestation are (3.). It will then examine the re-lationship between human rights and the environment and evaluate how selected rights might be violated by deforestation activities (4.). Drawing on rights from all generations, the focus will lie on rights to environment, fundamental guarantees and indigenous rights. In addition, procedural rights and environmental dimensions, such as prevention and precaution, will be considered. Non-discrimination issues are, however, left aside. In a final critical analysis, the merits and disadvantages of a rights approach to deforestation shall be discussed (5.).
2. Significance of Forests for Humans
Forests are of considerable importance to humans: The World Bank estimates that 1.6 billion people depend on them to varying degrees and that 60 million indigenous people are fully de-pendent on them.6 Categorizing broadly, forests affect humans in relation to food and water, livelihood, cultural identity and climate change.
For more than one billion people, forests and trees on farms are a source of food and provide
1 FAO, State of the world's forests 2016 (FAO 2016) 10–12.
2 cf eg Mayagna (Sumo) Awas Tingni Community v Nicaragua, IACtHR Series C No 79; Jouni E Länsman et al
v Finland, Communication No 671/1995, UN Doc CCPR/C/58/D/671/1995; Case of the Saramaka People v Suriname, IACtHR Series C No 172 (28 November 2007); Maya Indigenous Communities of the Toledo Dis-trict v Belize, IAComHR Reports No 40/04.
3 Environmental Justice Atlas, ‘Deforestation’ <https://ejatlas.org/type/deforestation> accessed 13 July 2018. Note: not all of these cases are still ongoing. For a map of the conflicts see Appendices Maps 1 and 2. On the background of the Atlas see Leah Temper, Daniela del Bene and Joan Martinez-Alier, ‘Mapping the frontiers and front lines of global environmental justice: the EJAtlas’ (2015) 22 Journal of Political Ecology 255. 4 Medio ambiente y derechos humanos, IACtHR Advisory Opinion OC-23/17 (15 November 2017).
5 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement) (adopted 4 March 2018, not yet in force).
for important nutrients.7 In particular poor and rural people rely on them as a safety net.8 In addition, about 75 % of the accessible freshwater supplies stem from forested watersheds and wetlands where forests can function as water filters, so that even cities like New York rely on forests for their water.9
But forests are not only direct sources of nutrition. Arguably more importantly, many people rely on forest-related activities for their livelihood.10
Cultural significance is attached to forests especially among indigenous peoples.11 For in-stance, a spiritual importance may be attributed to a forest, or cultural objects may be fash-ioned from elements of the forest.12
As relates to climate change, forests can act as instruments of mitigation and adaptation. They currently are a net carbon sink on a global level.13 For adaptation, they can be a safety-net re-garding food and income, and regulate and stabilize the climate on a micro-level, for instance by preventing landslides.14
3. Extent, Causes and Impacts of Deforestation
While the rate of the negative change of forest area has more than halved since 2000, this can in part be attributed to the gain of forest area in some regions, rather than a reduction of the loss rate, and the negative change in 2015 still amounted to 3,308,000 hectares.15 Thus, loss of forest area remains a problem, especially in rainforest areas.16
Deforestation has various causes which may be interrelated, and in particular with climate-re-lated events, a complex web of mutually reinforcing drivers may be observed.17 The main
7 FAO, ‘Forestry communication toolkit - Food security - Key messages’ (22 December 2017) <http://www.-fao.org/forestry/communication-toolkit/76375/en/>.
8 ibid.
9 FAO, ‘Forestry communication toolkit - Watershed management - Key messages’ (22 December 2017) <http://www.fao.org/forestry/communication-toolkit/76377/en/>.
10 FAO, State of the world's forests 2014 (FAO 2014) 30.
11 Asia Forest Network, Where is the Future for Cultures and Forests?: Indigenous Peoples and Forest
Manage-ment in 2020 (FAO 2009) 19.
12 ibid.
13 Josef Settele and Robert Scholes, ‘Terrestrial and Inland Water Systems’ in Christopher B Field and Vicente R Barros (eds), Climate change 2014: Impacts, adaptation and vulnerability. Part A: Global and Sectoral Aspects.
Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2014) 301.
14 Aaron J M Russell and others, Using Forests to Enhance Resilience to Climate Change: What do we know
about how forests can contribute to adaptation? (PROFOR 2012) 24 and 26-27.
15 FAO, Global forest resources assessment 2015: How are the world's forests changing? (2nd edn, FAO 2016) 16.
16 See also Appendices Map 3 for an overview of the main deforestation fronts.
17 cf eg Settele and Scholes (n 13) 309 visualizing the interrelationship between logging, forest fires, tree death, global warming and drought.
driver is agriculture (80 %),18 but infrastructure development and mining contribute as well.19 Indirect drivers relate to larger-scale developments on a demographic, economic, technologi-cal or polititechnologi-cal level:20 Population growth, agricultural development, land-tenure insecurity and weak governance all can act as underlying factors.21
As regards impacts of deforestation, a distinction can be made between the consequences of forest loss and the impacts of the industrial and accompanying activities. Given the above de-scribed functions of forests, forest loss entails food and water insecurity, reduced protection from weather and climate events, possibly reduced rainfall, and a loss of cultural objects. With a share of around 12 % of total GHG emissions the impact is likely lower than former FAO estimates, but deforestation is still the second largest anthropogenic source of atmo-spheric CO2.22
With respect to consequences of the activities, forest fires can result in smoke and haze harm-ful to health.23 Industrial-scale deforestation activities can contaminate food and water re-sources24 and result in air and noise pollution. Finally, deforestation projects may be accompa-nied by killings, 25 evictions26 and destruction of property to the detriment of the local popula-tion.
4. Human Rights Standards and Possible Violations
4.1. The Relationship Between the Environment and Human Rights
In legal and policy practice, human rights and environmental protection are mostly understood as distinct but overlapping goals, integrated under the concept of sustainable development.27 Taking into account this understanding of the respective values, two distinct, but not mutually
18 Gabrielle Kissinger, Martin Herold and Veronique de Sy, Drivers of Deforestation and Forest Degradation: A
Synthesis Report for REDD+ Policymakers (Lexeme Consulting 2012) 11–12.
19 FAO, State of the world's forests 2016 (n 1) 20. 20 Kissinger, Herold and Sy (n 18) 10.
21 FAO, State of the world's forests 2016 (n 1) 20 and 22.
22 cf G. R van der Werf and others, ‘CO2 emissions from forest loss’ (2009) 2(11) Nature Geoscience 737, 737. 23 cf Christopher L Atkinson, ‘Deforestation and Transboundary Haze in Indonesia’ (2014) 5(2) Environment and
Urbanization ASIA 253, 255 on Indonesia.
24 Forest Peoples Programme, Closing the Gap: Rights-Based Solutions for Tackling Deforestation (2018) 14–16. 25 Global Witness, Deadly environment (Global Witness 2014) 14–15.
26 cf eg UN Habitat and OHCHR, Indigenous peoples' right to adequate housing: A global overview (UN Habitat; OHCHR 2005) 149.
27cf Dinah Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28(1) Stanford Journal of International Law 103, 105; OHCHR and UNEP, Human Rights and the Environment: Rio+20: Joint
Report OHCHR and UNEP (OHCHR and UNEP 2012) 20 and 21, with a survey of the practice in the preceding
pages; it is also the underlying conception in UN HRC ‘Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (“Framework Principles”)’ (24 January 2018) UN Doc A/HRC/37/59 Annex para 4. On the relationship with sustainable de-velopment see also UN HRC ‘Analytical study on the relationship between human rights and the environment, Report of the United Nations High Commissioner for Human Rights’ (16 December 2011) UN Doc A/HRC/19/34 para 9.
exclusive approaches can be identified when it comes to utilizing human rights to protect the environment. 28 Firstly, one may mobilize and reinterpret existing human rights for this goal.29 This has also been termed “greening” of human rights, describing an essentially anthropocen-tric process.30 On the other hand, novel rights of an explicitly environmental character may be formulated, as has been suggested with the right to a clean environment.31
4.2. The Relevant Human Rights Protections
In the following, the relevant rights will be discussed roughly in order of their “generation”, starting with individual civil and political rights, followed by economic, social and cultural rights, and finally collective rights. Two qualifications alter this structure: Being the only right of explicit environmental content of a significant level, the issue of a self-standing right to en-vironment will be examined first. Moreover, as procedural and other derivative dimensions have gained prominence in legal practice and can be derived from all rights, they will be as-sessed separately at the end.
4.2.1 Autonomous Right to a Healthy Environment?
The notion of an independent right to a healthy environment has been subject to considerable debate.32 Still the concept is characterized by uncertainty, as even the name is contested.33 Scholars have also made different suggestions as to the content and holders of such a right.34 For the purposes of this study, it shall first be assessed whether any conception of a right to environment has become binding international law, as otherwise the precise content and right-holders are irrelevant.
4.2.1.1. A Universal Norm of Customary International Law?
No binding universal treaty lays down a self-standing right to environment.35 Only at a
re-28 See also Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (n 27) 117 who treats the reformulation and expansion of existing rights as a third, intermediary step.
29 ibid 105; UN HRC ‘Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (“Scoping Report”)’ (24 December 2012) UN Doc A/HRC/22/43 para 11.
30 cf Alan Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18(3) Fordham Environmen-tal Law Review 471, 471–472 with respect to civil and political rights.
31 Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (n 27) 105; SR Scoping Report (n 29) para 11.
32 cf eg Malgosia Fitzmaurice and Jill Marshall, ‘The Human Right to a Clean Environment – Phantom or Reality?: The European Court of Human Rights and English Courts Perspective on Balancing Rights in Environmen -tal Cases’ (2007) 76(2) Nordic Journal of International Law 103, 104 with references in Fn 1; Sumudu Atapattu, ‘The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Envi -ronment Under International Law’ (2002) 16(1) Tulane Envi-ronmental Law Journal 65, 67 with further refer-ences in Fn 2.
33 Fitzmaurice and Marshall (n 32) 104. 34 cf ibid 105–106 with a summary.
35 Ulrich Beyerlin, ‘Umweltschutz und Menschenrechte’ (2005) 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 525, 525–526.
gional level, namely in the Inter-American36 and African systems37, can such provisions be found.38 Yet a universal norm of customary international law may have emerged. Proponents of a customary right to environment generally adduce two elements to support their proposi-tion: Similar rights in national constitutions and non-binding international documents.39 Both are of limited value when it comes to showing a customary right to environment. Aside from the fact that national legislation does not necessarily demonstrate the required opinio juris, the municipal provisions provide for a diverse range of rights and objective legal norms, so that they do not show a widespread and consistent practice in support of a certain right.40 Simi-larly, international documents lack consistency. The instruments commonly referred to starkly differ in their content.41 In addition, the reactions of states to efforts to codify a right to envi-ronment, as in the case of the UN Draft Principles,42 demonstrate that they intend to keep any such “rights” within the realm of soft law and therefore lack the required opinio juris.43
4.2.1.2. The Inter-American Human Rights System
With Article 11 of the San Salvador Protocol, the Inter-American human rights system ap-pears to grant a strong “right to live in a healthy environment”. The General Assembly of the Organization of American States (OAS) has also recognized the state of forest resources to be a progress indicator for measuring the right to a healthy environment when assessing the peri-odic state reports.44 However, this right is subject to two severe limitations.45 Firstly, as per Article 1 of the Protocol, following the structure of economic, social and cultural rights, it is to be realized progressively, as far as the available resources allow, and taking into account
36 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cul-tural Rights (San Salvador Protocol) (adopted 17 November 1988, entered into force 16 November 1999) OAS Treaty Series 69, Article 11.
37 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (AfCHPR), Article 24.
38 Beyerlin (n 35) 525–526; Fitzmaurice and Marshall (n 32) 108.
39 Neil A F Popovic, ‘In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Princi-ples on Human Rights and the Environment’ (1996) 27 Columbia Human Rights Law Review 487, 603.
40 Silja Vöneky and Felix Beck, ‘Umweltschutz und Menschenrechte’ in Alexander Proelß (ed), Internationales
Umweltrecht (De Gruyter 2017) 141 para 10. On the requirement of widespread and consistent practice cf Fish-eries Case (United Kingdom v Norway) [1951] ICJ Rep 116, 131; Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14 para 186; ILC, ‘Draft
Con-clusions on Identification of Customary International Law’ (30 May 2016) UN Doc A/CN.4/L.872 Draft conclu-sion 8.
41 Alan Boyle, ‘Environment and Human Rights’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public
International Law (Oxford University Press Online Edition) paras 11 and 15.
42 UN HRCom ‘Draft Principles on Human Rights and the Environment’ (1994) UN Doc E/CN.4/Sub.2/1994/9 Annex I.
43 cf Patricia W Birnie, Alan Boyle and Catherine Redgwell, International law and the environment (3rd edn, Ox-ford University Press 2009) 279 on the opposition on the part of states.
44 OAS, ‘Progress Indicators for Measuring Rights Under the Protocol of San Salvador – Second Group of Rights’ OEA/Ser.L/XXV.2.1, GT/PSS/doc.9/13 (5 November 2013) para 38, adopted by AG/RES. 2823 (XLIV-O/14) (4 June 2014) para 1.
the national development. Secondly, it cannot be invoked by way of an individual remedy but is subject only to observations and recommendations by the Inter-American Commission on Human Rights (IAComHR) pursuant to Article 19(7) of the Protocol.
Yet in a recent Advisory Opinion, the IACtHR has established that a right to a healthy envi-ronment is contained in Article 26 ACHR, 46 too.47 Thereby, the Court sets out a right to envi-ronment that is – as follows from its decision in Lagos del Campo v. Peru48 - directly justicia-ble in contentious cases.49 Identifying this autonomous right as one “fundamental to the exis-tence of humanity”, the Court proceeds to stress that the right protects components of the en-vironment, like forests, as a legal interest in themselves, irrespective of whether there is a risk to individual persons.50 In adding this dimension, the Court – referring to a tendency to accord legal personality to elements of nature in national legal orders51 – renders the right also one of an “environmental rights” nature in the strict sense.52 With this Advisory Opinion, the Inter-American system offers an individual remedy even where the individual faces no threat to an-other human right like his or her life.53 This may have far-reaching implications, particularly for deforestation in the Amazon basin, where deforestation can have ecological and climatic consequences that make it more likely that the severity for a violation is attained. The precise significance that the reasoning will have in future case-law of the Court is, however, still un-certain.
4.2.1.3. The African Human Rights System
Article 24 AfChHPR provides for a right of all peoples “to a general satisfactory environment favorable to their development”. While the norm therefore sets out the right as a collective, third-generation right,54 it is not subject to the same limitations as the equivalent in the San Salvador Protocol. In the leading SERAC (Ogoniland) case,55 the AfComHPR demonstrated the application of the right. It makes clear that all rights in the Charter are justiciable and
out-46 American Convention on Human Rights (adopted 21 November 1969, entered into force 19 July 1978) 1144 UNTS 123 (ACHR).
47 Medio ambiente AO (n 4) para 57.
48 Case of Lagos del Campo v Peru, IACtHR Series C No 340 (31 August 2017) paras 141-144. 49 cf Medio ambiente AO (n 4) separate opinion of Judge Sierra Porto para 5.
50 ibid para 62.
51 Medio ambiente AO (n 4) para 62. See on legal personality the recent Decision of the Corte Suprema de
Justi-cia (Colombia), STC4360-2018 (5 April 2018) para 14, declaring the Colombian Amazon a “subject of rights,
beneficiary of protection, conservation, maintenance and restoration”; and the classic article by Christopher D Stone, ‘Should Trees Have Standing?: Toward Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 450.
52 Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (n 27) 117: “it can be under-stood to refer to rights of the environment, i.e., rights that the environment possesses, rather than the right of hu-mans to a healthy environment.”
53 cf on the distinction from other human rights also Medio ambiente AO (n 4) para 63.
54 Christian Tomuschat, Human rights: Between idealism and realism (3rd edn, Oxford University Press 2014) 149.
lines four general dimensions of human rights obligations, namely to respect, protect, promote and fulfil. 56 More particularly, the resources of a collective group must be protected, ecologi-cal degradation must be prevented, conservation promoted and ecologiecologi-cally sustainable devel-opment and use of resources secured.57 As can be seen from this and the concrete steps the Commission requested the Nigerian government to take, the broad right to environment can be operationalized. What the Commission left unanswered is what the threshold is as relates to environmental degradation and pollution, and what conservation measures the Charter re-quires.58 Given the provision’s reference to human development, it can be inferred that con-servation measures shall not bar humans from the use of resources altogether, but be to their benefit.59 No pronouncement has been made on the threshold issue, yet in can be deduced from tendencies of the Commission and decisions of other bodies that degradation must be so significant as to frustrate any enjoyment of the environment favorable to human well-being.60 Thus, deforestation is not prohibited by the Charter outright. Only where a forest’s capacity to provide food and clean water for dependent persons is destroyed or activities accompanying deforestation cause pollution so severe as to seriously threaten human health, will the substan-tive threshold of Article 24 AfChHPR be met. Procedural guarantees under the norm may be-come relevant at an earlier stage, but they will be assessed at a later point.
4.2.2. First-Generation Human Rights 4.2.2.1. Right to Life
The right to life is a fundamental human right enshrined in Article 6 ICCPR,61 Article 2 ECHR,62 Article 4 ACHR and Article 4 AfChHPR, and recognized as a norm of customary in-ternational law.63 As generally the case in human rights law, states are not only under a nega-tive obligation to respect this right, but also under a posinega-tive obligation to protect from
viola-55 Decision Regarding Communication 1viola-55/96 (Social and Economic Rights Action Center/Center for Economic
and Social Rights v Nigeria) Case No ACHPR/COMM/A044/1 (27 May 2002).
56 ibid paras 68 and 44. 57 ibid paras 45 and 52.
58 Emeka P Amechi, ‘Enhancing Environmental Protection and Socio-Economic Development in Africa: A Fresh Look at the Right to a General Satisfactory Environment under the African Charter on Human and Peoples’ Rights’ (2009) 5(1) Law, Environment and Development Journal 58, 65.
59 ibid 65–66. 60 ibid 65–68.
61 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
62 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR).
63 Niels Petersen, ‘Life, Right to, International Protection’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of
Public International Law (Oxford University Press Online Edition) para 1; B. G Ramcharan, ‘The Conceptions
and Dimensions of the Right to Life’ in B. G Ramcharan (ed), The Right to life in international law (M Nijhoff 1985) 3; Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR commentary (2nd edn, N.P. Engel 2005) 122: has been described as ius cogens.
tions by other actors.64 The right to life is not a mere protection from arbitrary killing,65 as the obligation to protect extends to actual or imminent violations arising from natural hazards.66 Therefore, in an environmental context, too, state duties will come into play where there is a serious threat to life, irrespective of the source. The UN Human Rights Committee (HRCte) has indicated that positive measures should also encompass such conducive to an environment permitting a healthy life.67 The Committee, nevertheless, sets a high threshold for applicants seeking to claim a violation: They must show an immediate, real threat of a violation.68 Simi-larly, regarding the obligation of states to “safeguard lives of those within their jurisdiction”,69 the ECtHR and IACtHR require concrete threats,70 distinguishing them from questions of the quality of life.71
Consequently, it can be said that the right to life provides strong protection against concrete dangers to life. Where, however, broader positive obligations not directly related to such threats are at issue, the right is essentially not justiciable.72
In the context of deforestation, imminent threats to life may arise in two ways: They can occur in the form of killings of the local population or serious environmental harm. Global Witness found that in 2016, logging and agribusiness were the driving factor for 23 killings each.73 While the perpetrators are mostly undeterminable, state involvement has been shown in a number of cases.74 In the typical cases in the context of deforestation, once an act is attribut-able to a state, the interference will usually not be justified, as justification requires that the deadly force is the last resort, strictly necessary for the achievement of a legitimate aim, which must also be ensured on the planning and control level of the operation.75 The
legiti-64 This follows from Article 2(1) ICCPR, Article 1 ECHR and Article 1(1) ACHR, cf Petersen (n 63) para 12; see generally Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Oxford University Press 2009) 96 and 291.
65 See already Ramcharan (n 63) 4. 66 Kälin and Künzli (n 64) 103–104.
67 UN HRCte ‘General Comment 6’ (1982) UN Doc HRI/GEN/1/Rev.1 176 para 5; in greater detail now UN
HRCte ‘General Comment 36 – revised draft’
<http://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf> para 30.
68 cf UN HRCte Bordes and Temeharo v France, Communication No 645/1995, UN Doc CCPR/C/57/D/645/1995 paras 5.4-5.7; Brun v France, Communication No 1453/2006, UN Doc CCPR/C/88/D/1453/2006 para 6.3; Draft GC 36 (n 67) para 15.
69 Öneryildiz v Turkey ECHR 2004-XII 79 para 71.
70 Christoph Grabenwarter and Katharina Pabel, Europäische Menschenrechtskonvention: Ein Studienbuch (6th edn, C.H. Beck; Helbing Lichtenhahn; Manz 2016) section 20 mn 23; Case of Luna López v Honduras, IACtHR Series C No 269 (10 October 2013) para 124.
71 Pretty v UK ECHR 2002-III 155 para 39.
72 cf Draft GC 36 (n 67) para 15; similarly also Nowak (n 63) 123 para 4. 73 Global Witness, Defenders of the Earth (Global Witness 2017) 10.
74 Global Witness, Deadly environment (n 25) 16; Global Witness, Defenders of the Earth (n 73) 11.
75 cf McCann and Others v UK (1995) Series A no 324 paras 148-150; UN HRCte Suarez de Guerrero v
Colom-bia, Communication No 45/1979, UN Doc CCPR/C/15/D/45/1979 paras 13.2-13.3; Draft GC 36 (n 67) paras
mate goal generally has to be the prevention of the imminent death or serious injury of oneself or others.76 Thus, unless the local population presents an imminent danger to the life or bodily integrity of others, and the use of force is absolutely necessary and proportionate, deadly vio-lence is unlawful.
Where the threat to life is not attributable to a state, the issue of an obligation to protect be-comes central. States must put in place a legal and institutional framework that effectively de-ters human rights violations.77 As it is insufficient if regulation is “mere formality”,78 states must also effectively enforce their rules and investigate and punish breaches.79
In assessing whether a state complied with its preventive duties, it must be understood that they enjoy a margin of appreciation and that preventive measures must be within their scope of powers and may not impose disproportionate or impossible burdens on the state.80 Immedi-ate operational duties are at issue where authorities know or – in exercise of their due dili-gence – should have known of an actual or imminent threat.81 Killed environmental defenders often report threats before their death, but nevertheless do not receive sufficient protection.82 Typically, the killings occur in a climate of impunity of perpetrators, where officials may be corrupt or in collusion.83 In such cases, the obligation to protect is violated.
Finally, it has been shown that positive obligations apply with regard to any activity or fore-seeable natural hazard threatening life. Therefore, if authorities fail to take adequate measures to prevent foreseeable harm from such sources, a violation of the right to life of those suffer-ing the harm is usually given. Toxic pollution of water as a byproduct of deforestation activi-ties,84 for instance, needs to be addressed with effective positive measures. Similarly, where deforestation renders a local population more prone to regular flooding, a violation may be at issue.85
76 cf UN HRC ‘Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions’ (23 May 2011) UN Doc A/HRC/17/28 para 60; Decision Regarding Communication 295/04 (Noah Kazingachire and
oth-ers v Zimbabwe) (AfComHPR, 12 October 2013) paras 115, 117, 119 and 120. Even the grounds of Article 2(2)
(b) and (c) ECHR do not provide for less demanding aims, cf Grabenwarter and Pabel (n 70) section 20 mn 16 and 17.
77 cf eg Öneryildiz case (n 69) paras 89 and 90; HRCte Draft GC 36 (n 67) para 24. 78 Case of Ximenes-Lopes v Brazil, IACtHR Series C No 149 (4 July 2006) para 98.
79 ibid para 98 and 99; UN HRC ‘Guiding Principles on Business and Human Rights’ (2011) UN Doc A/HRC/17/31 Annex 1 principles 1 and 3(a); Case of the Indigenous Community Sawhoyamaxa v Paraguay, IACtHR Series C No 146 (29 March 2006) para 153.
80 Budayeva and Others v Russia ECHR 2008-II 267 paras 134-137; Sawhoyamaxa case (n 79) para 155. 81 Kälin and Künzli (n 64) 110–111.
82 UN HRC ‘Situation of human rights defenders’ (SR report, 3 August 2016) UN Doc A/71/281 para 34. 83 ibid paras 29 and 51.
84 cf on facts of water pollution Mario Rautner, Matt Leggett and Frances Davis, The Little Book of Big
Deforesta-tion Drivers (Global Canopy Programme 2013) 51.
In sum, the right to life offers strong protection from all sources of threats. The danger, how-ever, must be severe and imminent. While the relevance of the right to life for environmental harm is thus limited, it nevertheless remains important in the present context, since large-scale deforestation can coincide with violence against local populations.
4.2.2.2. Right to Private Life
The right to private life is protected in Article 17 ICCPR, Article 8 ECHR and Article 11 ACHR. Of these guarantees, the right has attained prominence in environmental cases in the jurisprudence of the ECtHR, where against in the Inter-American system such cases were more concerned with indigenous rights and the right to life.86 The HRCte has not yet dealt ex-tensively with the environmental dimensions of Article 17 ICCPR, but some pronouncements suggest an understanding of the right similar to that of the ECtHR.87
The ECtHR has consistently held that environmental nuisances such as pollution can consti-tute an interference with private life.88 Such environmental effects must attain a minimum level of severity and not be mere annoyances.89 Positive obligations are again stressed by the Court, which, however, also notes its subsidiary role, granting states a wide margin of appre-ciation.90 Nevertheless, particularly in the case of industrial activities, regulation must take into account special features of the activity and govern “licensing, setting up, operation, secu-rity and supervision”.91 In weighing the competing interests of the individual and the commu-nity, the state must strike a fair balance.92
In the context of deforestation, the right to private life may be affected through forcible mea-sures or environmental effects. A logging company in the Philippines forcibly evicting an in-digenous population from their homes93 constitutes an interference with the right to private life, as the state has a positive duty to prevent such evictions. Depending on the precise
cir-86 Dinah Shelton, ‘Human Rights and the Environment: Jurisprudence of Human Rights Bodies’ [2002] Back-ground Paper No 2 for Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment, 7 <http://ohchr.org/Documents/Issues/Environment/BP2_TBjurisprudence.pdf> accessed 2 May 2018.
87 See eg Bordes Temeharo case (n 68), in which the HRCte did not find the claim under Article 17 ICCPR inad-missible because environmental threats could not affect this right, but because the claim was not substantiated sufficiently.
88 See eg recently Jugheli and Others v Georgia App no 38342/05 (ECtHR, 13 July 2017) para 62; Hatton and
Others v UK ECHR 2003-VIII 189 para 96; López Ostra v Spain (1995) Series A no 303C para 51; Guerra and Others v Italy ECHR 1998-I 7 para 60.
89 cf eg López Ostra (n 88) para 51; Mileva and Others v Bulgaria Apps nos 43449/02 and 21475/04 (ECtHR, 25 November 2010) para 90; Christoph Grabenwarter, European Convention on Human Rights: Commentary (C.H. Beck; Hart; Nomos 2014) 192 mn 18.
90 cf Fadeyeva v Russia ECHR 2005-IV 255 paras 102-105. 91 ibid paras 71 and 90.
92 Giacomelli v Italy ECHR 2006-XII 345 para 78
cumstances, it will hardly be justifiable.94 Forest industries also entail environmental effects that concern the right to privacy, such as noise, air and water pollution. If such pollution is so severe as to directly affect a person’s private life,95 the interference again is difficult to jus-tify.96 Seeing as deforestation is commonly exercised on an industrial level and with poten-tially dangerous consequences for the environment and human rights, it follows from the above that it must be regulated in consideration of all its features and effects. Within the scope of their discretion, states may take into account possible economic development in favor of projects. But in striking a fair balance, generally speaking, private business interests cannot prevail over severe violations of rights. With weak governance and a lack of enforcement be-ing a key underlybe-ing driver of deforestation, it is crucial that states meet their duties of effec-tive enforcement.
4.2.3. Second-Generation Rights
4.2.3.1. General Observations on Obligations Under These Rights
As aforementioned, despite the differences in the respective wordings of Article 2(1) ICE-SCR97 and Article 2(1) ICCPR, it has become accepted that the rights under the former instru-ment, too, entail obligations to respect, protect and fulfil.98 What makes them different is that greater emphasis lies on the fulfilment dimension.99 As relates to deforestation scenarios, this component is however not relevant. The issue with deforestation regarding the rights to food, water, health and housing is not that there are people unable to satisfy their needs on their own, but rather that existing benefits, such as clean water or food found in forests are re-moved by state or private actors. This concerns the obligations to respect and protect. These duties have immediate effect.100 Therefore, the debate surrounding progressive realization and justiciability shall not be engaged in here.
94 cf eg Akdivar and Others v Turkey ECHR 1996-IV para 88; Case of the Ituango Massacres v Colombia, IAC-tHR Series C No 148 paras 192-197; see also UN HRC ‘Basic Principles and Guidelines on Development-Based Evictions and Displacement’ (2007) UN Doc A/HRC/4/18 Annex 1 paras 21-22
95 In contrast to Kyrtatos v Greece ECHR 2003-VI 257 para 53, where it had not been shown that deteriorating conditions of animal life affect the applicants’ private life.
96 cf the successful cases of Deés v Hungary App no 2345/06 (ECtHR, 9 November 2010) paras 22-24 (noise pol-lution); Fadeyeva case (n 90) (industrial air pollution).
97 International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16 December 1966, en-tered into force 3 January 1976) 993 UNTS 3.
98 cf on second-generation rights specifically CESCR ‘General Comment 12’ (1999) UN Doc E/C.12/1999/5 para 15; CESCR ‘Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’ UN Doc E/C.12/2000/13 16 para 6.
99 Kälin and Künzli (n 64) 114.
100 This may be inferred from CESCR statements, see with regard to duties to respect M. M Sepúlveda, The
Na-ture of the Obligations Under the International Covenant on Economic, Social and Cultural Rights (Intersentia
4.2.3.2. Rights to Food and Water
While elements of a right to food are contained in numerous instruments, Article 11 ICESCR is the central provision dealing comprehensively with the issue.101 The AfComHPR has found that a right to food is implicit in the rights to life, health and development.102 Moreover, the right has found codification in Article 12 San Salvador Protocol and recognition as a norm of customary international law.103 Albeit only sparsely mentioned in international conventions, the right to water, too, is now recognized, in particular as included in Articles 11 and 12 ICE-SCR.104
As core contents of the rights to food and water, the CESCR has identified availability, qual-ity and accessibilqual-ity.105 Under the obligation to respect, states shall refrain from preventing ac-cess to existing food, while the duty to protect requires that states ensure that non-state actors do not deprive others of their access to food.106 As feeding oneself directly from available nat-ural resources is a major method of procurement, at least in rnat-ural or less developed areas, uti-lization of land falls within the scope of the right to food.107 States may not deny or limit equal access to adequate water, arbitrarily interfere with customary or traditional arrangements of water allocation or unlawfully diminish or pollute water (duty to respect), and shall adopt ef-fective legislative and other measures to prevent non-state actors from engaging in such prac-tices (duty to protect).108
In the context of deforestation, several violation scenarios are conceivable. Firstly, as will be remembered, pollution from deforestation activities may contaminate available food and wa-ter resources. By way of example, Global Witness has reported that logging has polluted the Min River in Papua New Guinea, killing the fish that locals used to catch.109 Where such ac-tions are carried out by state actors or the effects were predicted in the licensing process, there
101 Kerstin Mechlem, ‘Food Security and the Right to Food in the Discourse of the United Nations’ (2004) 10(5) European Law Journal 631, 637–638.
102 SERAC case (n 55) para 64.
103 Kerstin Mechlem, ‘Food, Right to, International Protection’ in Rüdiger Wolfrum (ed), Max Planck
Encyclope-dia of Public International Law (Oxford University Press Online Edition) paras 10 and 13.
104 CESCR ‘General Comment 15’ (2003) UN Doc E/C.12/2002/11 para 3; UN HRC ‘Human rights and access to safe drinking water and sanitation’ (2010) UN Doc A/HRC/RES/15/9 para 3; this interpretation of the ICESCR is supported by wider international (environmental) legal practice, cf Takele S Bulto, ‘The Emergence of the Hu-man Right to Water in International HuHu-man Rights Law: Invention or Discovery’ (2011) 12 Melbourne Journal of International Law 290, 294 and 314.
105 CESCR GC 12 (n 98) para 8; CESCR GC 15 (n 104) para 12. 106 ibid para 15.
107 ibid paras 12 and 13; Beyerlin (n 35) 535–536; John G Sprankling, The International Law of Property (Oxford University Press 2014) 130; Christophe Golay and Irene Biglino, ‘Human Rights Responses to Land Grabbing: A right to food perspective’ (2013) 34(9) Third World Quarterly 1630, 1634–1635.
108 ibid paras 21, 23 and 24.
is an interference that is hard to justify.110 A violation of the obligation to protect is at issue where the actions are carried out by private actors, as the state has failed to protect water and food resources from damage.111 Deforestation often also directly deprives people of (access to) forest food resources. If these resources are indispensable to the livelihoods of the people, the state is acting in violation of its duty to respect or protect.112 Even where they are not in-dispensable, the interference may not be justified.113
4.2.3.3. Right to Health
Protections of the right to health can be found in Article 12 ICESCR, Article 10 San Salvador Protocol and Article 16 AfCHPR. Not to be equated with a right to be healthy, it is largely centered around availability and accessibility, acceptability and quality of health facilities, goods and services.114 Article 12(2)(b) ICESCR, however, sets out environmental hygiene as another feature of the right which in the present context becomes relevant with respect to states’ obligations to respect and protect. Under these duties, states shall refrain from unlaw-fully polluting air, water and soil in a manner harmful to human health and prevent private ac-tors from generating such impacts.115 Pollution of drinking water or air can therefore consti-tute a violation.116 In addition to the examples of water pollution outlined above, the detrimen-tal health effects of forest fires to a large number of people in Indonesia can be cited as exam-ples of violations.117
4.2.3.4. Right to Housing
The right to adequate housing, as laid down in Article 11 ICESCR, is of concern in deforesta-tion cases in two respects. Firstly, states must refrain from and protect from unjustified forced evictions.118 Secondly, it is significant that the protection extends to land that residents are de-pendent upon, regardless of title under domestic law.119 Thus, even where housing in the nar-row sense is not involved, eviction of dependent people from forests becomes an issue under Article 11 ICESCR subject to the same principles.120
110 cf UN HRC ‘Report of the Special Rapporteur on the human right to safe drinking water and sanitation’ (2014) UN Doc A/HRC/27/55 para 20.
111 ibid para 29; SERAC case (n 55) paras 64-66.
112 cf UN HRC ‘Report of the Special Rapporteur on the Right to Food – Addendum (Large-scale land acquisitions and leases – minimum principles)’ (2009) UN Doc A/HRC/13/33/Add.2 para 15.
113 cf ibid para 9: the principles are minimum principles, interference may still be unneccesary or disproportionate. 114 CESCR ‘General Comment 14’ (2000) UN Doc E/C.12/2000/4 paras 7 and 12.
115 ibid para 34; SERAC case (n 55) paras 50-54; Kälin and Künzli (n 64) 317. 116 CESCR GC 14 (n 114) para 51.
117 cf on the facts Forest Peoples Programme (n 24) 18. 118 See on this above at 4.2.2.2.
119 cf Basic Principles and Guidelines on Development-Based Evictions and Displacement (n 103) paras 4 and 21 120 Sprankling (n 107) 131.
4.2.4. Collective Rights
4.2.4.1. Rights to Land and Resources
Notions of land rights implicit in the rights to food and housing have already been discussed. Elements included in cultural rights will be dealt with further below. In addition to these, there are, however, also full-fledged rights of indigenous peoples to lands and resources. They can be found in the ILO Convention 169121 and customary international law. Jurisprudence has further derived concrete indigenous land rights from Articles 21 ACHR and Article 14 AfCHPR. Finally, there are important soft law instruments. In the following, we shall exam-ine the scope of the rights to land and resources, requirements of restitution and compensa-tion, and the possibilities of forced removal.
4.2.4.1.1. Land Rights
Reflecting the emerging trend at the time of its adoption, ILO Convention 169 emphasizes self-governing rights of indigenous peoples and respect for their distinct societies, collective traditions and customary laws.122 The Convention is special in that it provides binding and concrete land rights.123 Its potential in countering deforestation is, however, limited by the fact that it is only ratified by 23 states.124 While, significantly, most South American states are party to the Convention, Fiji and the Central African Republic are the only state-parties from their respective UN regional groups.125
Article 14(1) of the Convention distinguishes between lands that the peoples “traditionally oc-cupy” and those “not exclusively occupied by them”. Traditional occupation requires suffi-ciently intense, continuous and dominant use.126 Where traditional use has not been dominant but rather shared with the majority population, the provision confers rights of use upon in-digenous peoples.127 Contrary to what the ordinary meaning of the wording of the first sen-tence might suggest, traditional doctrine holds that in the case of traditional occupation, recognition of formal ownership rights is not required, either.128 Effectively rendering the
121 Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169) (adopted 27 June 1989, entered into force 5 September 1991) 72 ILO Official Bulletin 59.
122 Mattias Åhrén, Indigenous Peoples' Status in the International Legal System (Oxford University Press 2016) 95–96; Federico Lenzerini, ‘The Trail of Broken Dreams: The Status of Indigenous Peoples in International Law’ in Federico Lenzerini (ed), Reparations for Indigenous Peoples (Oxford University Press 2008) 84. 123 Geir Ulfstein, ‘Indigenous Peoples' Right to Land’ (2004) 8 Max Planck Yearbook of United Nations Law 1,
45–46; Annan Voskuil, The Indigenous Peoples Convention: Perspectives offered by Article 12 of ILO
Conven-tion no.169 (LS Fair 2009) 196.
124 ILO, ‘Ratifications of C169’ <http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_IN-STRUMENT_ID:312314> accessed 7 June 2018.
125 ibid.
126 Åhrén (n 122) 175. 127 ibid.
right akin to a cultural right, this view posits that states are merely obliged to allow for the continued traditional land use.129
Prevailing doctrine holds that, in view of sufficient state practice and opinio juris, there is also a right of indigenous peoples under customary international law “to demarcation, ownership, development, control and use of the lands they have traditionally owned or otherwise occu-pied and used.”130 Important instruments in this regard are the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)131 and ILA resolution no. 5/2012.132 While the UNDRIP as a whole cannot (yet) be seen as reflecting customary international law,133 land and resource rights exist in this latter form.134 Given that the ILA resolution seeks to restate existing law and stems from a diverse and respected body that makes reference to an extensive survey of practice, it can be regarded as an authoritative statement of existing customary international law.135 According to Article 26(1) and (3) UNDRIP, states must recognize and protect indige-nous peoples’ rights to “the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”. ILA resolution no. 5/2012, too, states an obligation to “recognize, respect, safeguard, promote and fulfil the rights of indigenous peo-ples to their traditional lands, territories and resources”,136 that encompasses a duty to provide for demarcation, title and equivalent legal recognition.137
In the Inter-American system, the Awas Tingni case marked the first occasion that the human rights institutions dealt with a case based on rights claimed by a collective indigenous
129 Åhrén (n 122) 175.
130 Siegfried Wiessner, ‘Culture and the Rights of Indigenous Peoples’ in Ana Vrdoljak (ed), The Cultural
Dimen-sion of Human Rights (Oxford University Press 2013) 149; Hendrik A Strydom, ‘Environment and Indigenous
Peoples’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press Online Edition) mn 4; Rights of Indigenous Peoples, Resolution No 5/2012 (adopted at the 75th Confer-ence of the International Law Association held in Sofia, 26-30 August 2012) available at <https://ila.vettoreweb.-com/Storage/Download.aspx?DbStorageId=1242&StorageFileGuid=8ec956d5-2aa5-4ba2-9bf7-13de4659ee65> para 7. But see Alexandra Xanthaki, ‘Indigenous Rights in International Law over the Last 10 Years and Future Developments’ (2009) 10 Melbourne Journal of International Law 27, 35–37.
131 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), UN Doc A/RES/61/295 (2 October 2007). 132 n 130.
133 ILA resolution 5/2012 (n 130) para 2; Xanthaki (n 130) 36.
134 cf Committee on the Rights of Indigenous Peoples, ‘Rights of Indigenous Peoples – Interim Report’ (74th Con-ference of the International Law Association held in The Hague, 15-20 August 2010) available at <https://ila.vet- toreweb.com/Storage/Download.aspx?DbStorageId=1244&StorageFileGuid=07e8e371-4ea0-445e-bca0-9af38fcc7d6e> p 47-52; Wiessner (n 130) 118, 142 and 149; Åhrén (n 122) 107 and 194.
135 Wiessner (n 130) 152–156; S. J Anaya, Statement of Endorsement of Committee Final Report and Resolution in Committee on the Rights of Indigenous Peoples, ‘Rights of Indigenous Peoples – Final Report’ (75th Conference of the International Law Association held in Sofia, 26-30 August 2012) available at <https://ila.vettoreweb.com/Storage/Download.aspx?DbStorageId=1243&StorageFileGuid=401ee841-8ad2-4e35-8aaf-beebd9b3aa4e> Annex. See also on the role of the ILA’s work generally ILC, ‘Third report on the identification of customary international law’ (27 March 2015) UN Doc A/CN.4/682 para 65.
136 para 7.
group.138 In this case concerning concessions for logging in indigenous lands,139 the Court, employing an evolutionary interpretation, established the collective right of petitioning in-digenous people to demarcation, title and use of the land they inhabit.140 The AfComHPR has adopted this reasoning.141
It can be seen from this that the right of indigenous peoples to recognition and respect of the lands they inhabit is established internationally. In light of these developments and the provi-sion’s wording, Article 14 ILO Convention 169 must be interpreted as requiring recognition of formal ownership, as well.142 Since insecurity of land tenure can be a catalyst for deforesta-tion, it is crucial that states follow this obligation and recognize and protect indigenous land rights on a national level.
4.2.4.1.2. Resource Rights
Resources, including forest resources like timber,143 find special regulation in Article 15 ILO Convention 169. Accordingly, the rights “to the natural resources pertaining to their lands shall be specially safeguarded.” But these rights are substantially limited, since they are inter-linked with national law.144 Article 15(1) limits the rights to such of participation145 and the protections are further weakened by the possibility of expropriation and removal under certain criteria in Articles 15(2) and 16.146 Crucially, indigenous peoples also lack direct access to monitoring mechanisms.147 Applying this legal framework in the present context, one possible scenario is a state permitting oil exploration in indigenous forest areas.148 Even if the indige-nous people has traditionally occupied the area, national laws usually retain state ownership of oil (Article 15(2)). The state must then merely consult the indigenous people beforehand
138 S. J Anaya and James J Lenoir, International human rights and indigenous peoples (Wolters Kluwer 2009) 265–266.
139 S. J Anaya and Claudio M Grossman, ‘The Case of Awas Tingni v. Nicaragua: A Step in the International Law of Indigenous Peoples’ (2002) 19(1) Arizona Journal of International and Comparative Law 1, 2.
140 Awas Tingni case (n 2) paras 148 and 153.
141 Decision Regarding Communication 276/03 (Center for Minority Righs Development and Minority Rights
Group v Kenya (Endorois case)) (AfComHPR, 20 November 2009) para 190.
142 Åhrén (n 122) 176.
143 Fernanda Almeida, ‘Legal Recognition of Forest Rights of Indigenous Peoples and Local Communities’ in Laslo Pancel and Michael Köhl (eds), Tropical Forestry Handbook (2nd edn. Springer 2016) 3452; ILO,
Indige-nous and tribal peoples' rights in practice: A guide to ILO Convention No. 169 (ILO 2009) 107.
144 Benedict Kingsbury, ‘Indigenous Peoples’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public
Inter-national Law (Oxford University Press Online Edition) para 37.
145 Catherine M Brölmann and Marjoleine Y A Zieck, ‘Indigenous Peoples’ in Catherine M Brölmann, René. Lefeber and Marjoleine Y A Zieck (eds), Peoples and minorities in international law (M Nijhoff 1993) 207. 146 Lenzerini (n 122) 85–86.
147 Athanasios Yupsanis, ‘ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989–2009: An Overview’ (2010) 79(3) Nordic Journal of International Law 433, 448.
148 cf the similar case concerning the Shuar people in Report of the Committee of Experts set up to examine the
representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No 169), made under Article 24 of the ILO Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales Libres (CEOSL), (2001) Doc GB.282/14/2.
and throughout the process, compensate for damage caused by the exploration and exploita-tion, and – if possible – share benefits.149
There against, under customary international law, as reflected by Article 26 UNDRIP and para. 7 of ILA resolution 5/2012, indigenous peoples have a right to their traditional re-sources, including those of which the state has retained ownership.150 Article 32 UNDRIP rec-ognizes potential state interests in the exploitation of resources, but requires free, prior and in-formed consent of the indigenous people. Where a project may significantly impact the peo-ple’s rights and way of life, this consent is mandatory.151 In the same vein, the IACtHR has as-serted the rights of indigenous peoples to the resources in their lands as secured in Article 21 ACHR.152 Restrictions are possible in the Inter-American system, provided that they are “a) previously established by law; b) necessary; c) proportional, and d) with the aim of achieving a legitimate objective in a democratic society.”153 Furthermore, they may not affect the “tradi-tions and customs in a way that endangers the very survival of the group and of its mem-bers.”154 In interpreting Article 21 AfCHPR, the AfComHPR followed the IACtHR’s reason-ing.155
Finally, as regards forced removal of indigenous peoples from their lands, Article 10 UN-DRIP sets out a requirement of free, prior and informed consent for relocation, prohibiting forced removal. Similarly, para. 5 ILA resolution 5/2012 states a general requirement of such consent. While there has been some debate about the absolute character of the prohibition of removal, Article 10 UNDRIP clearly deviates from Article 16 ILO Convention 169, which permits forced removal as an exceptional measure.156 Consequently, forced removals are pro-hibited under customary international law.157
In sum, there are strong land and resource rights. Consent to state projects and concessions fundamentally impacting the way of life is strictly required. Even where this is not the case, projects are still an interference with indigenous property rights, so that they must serve a
le-149 ibid paras 35 and 36; ILO, Indigenous and tribal peoples' rights in practice (n 143) 107–108.
150 Claire Charters, ‘Indigenous Peoples’ Rights to Lands, Territories, and Resources in the UNDRIP: Articles 10, 25, 26, and 27’ in Jessie Hohmann and Marc Weller (eds), The UN Declaration on the Rights of Indigenous
Peo-ples: A commentary (Oxford University Press 2018) 421; Wiessner (n 130) 154; Åhrén (n 122) 194; ILA interim
report (n 134) 51.
151 ILA resolution 5/2012 (n 130) para 5; ILA final report (n 135) 7.
152 Sawhoyamaxa case (n 79) paras 118 and 121; Case of the Yakye Axa Indigenous Community v Paraguay, IAC-tHR Series C No 125 (17 June 2005) paras 124 and 137.
153 Saramaka case (n 2) para 127. 154 ibid para 128.
155 Endorois case (n 141) paras 266-268. 156 Charters (n 150) 409.
gitimate aim and be necessary and proportionate.158 A legitimate goal can only lie in a valid public purpose, rather than private commercial interests.159 These requirements will be diffi-cult to meet in the case of industrial projects with significant impact in the rights of indige-nous peoples.160 As evident in the Inter-American framework, these rights provide a powerful tool to resist deforestation plans. Given that indigenous territories cover 27.7 % of the Ama-zon region161 and deforestation occurring in these territories between 2000-2010 was almost seven times less than the average in non-protected areas,162 the potential of indigenous rights for combatting deforestation here is strong. Enforcement can be more difficult in the Asia-Pa-cific, where about two thirds of the world’s indigenous people live, since rights under custom-ary international law have no international adjudicatory body, important states like Indonesia and Malaysia are not party to ILO Convention 169 and the area has no other regional judicial body recognizing indigenous rights.163
4.2.4.2. Collective Cultural Rights
Article 27 ICCPR in principle sets out an individual as the right-holder. Yet the cultural right is to be exercised “in community with other members of their [minority] group”; hence the collective dimension. Members of minorities are people “who belong to a group and who share in common a culture, a religion and/or a language”, and who are not necessarily nation-als of the state concerned.164 They must, however, be numerically inferior within the state as a whole.165
In its case law mainly concerning indigenous peoples, the HRCte has further “collectivized” the right, finding, for instance, that timber logging and oil and gas extraction in indigenous lands threatened the traditional way of life of the indigenous group and hence violated Article 27 ICCPR.166 As is already apparent in this example, an element of land and resource rights has developed under the right to culture. The cultural life of a group may be dependent on a relationship with land and resources.167 Industrial activities, such as deforestation projects, in
158 UN HRC ‘Report of the Special Rapporteur in the rights of indigenous peoples’ (2013) UN Doc A/HRC/24/41 paras 34 and 35.
159 ibid para 35. 160 ibid para 36.
161 RAISG, ‘Amazonia 2017: Protected Areas and Indigenous Territories’ (2017) 2 <https://www.amazoniaso-cioambiental.org/en/download/amazonia-2017-protected-areas-and-indigenous-territories/> accessed 11 July 2018. See also Appendices Map 4.
162 RAISG, Amazonia Under Pressure (RAISG 2012) 57. 163 cf Almeida (n 143) 3451.
164 UN HRCte ‘General Comment 23’ (1994) UN Doc CCPR/C/21/Rev.1/Add.5 para 5.1.
165 cf UN HRCte Ballantyne et al v Canada, Communication Nos 359/1989 and 385/1989, UN Doc CCPR/C/47/D/359/1989 and 385/1989/Rev.1 para 11.2.
166 UN HRCte Bernard Ominayak, Chief of the Lubicon Lake Band v Canada, Communication No 167/1984, UN Doc CCPR/C/38/D/167/1984 paras 32.2 and 33; Åhrén (n 122) 91.
lands to which a minority group has such a relation, are a violation if the impact is so severe that it amounts to a denial of their right to enjoy their culture.168 This does not mean that there is no proportionality assessment.169 Considering states’ legitimate interest in economic devel-opment, it must be assessed whether free, prior and informed consent of the concerned minor-ity was given, and whether the legitimate gain is proportionate to the interference with the en-joyment of culture.170 Significantly, the HRCte has also emphasized states’ positive obliga-tions.171
In conclusion, the right to culture can be a promising means in countering deforestation mea-sures where a minority group has a cultural relationship to the forest area. While the justifica-tion of economic development projects remains possible, the incorporajustifica-tion of the concept of free, prior and informed consent raises the threshold – although it is still unclear how exactly the HRCte applies this notion.172 In contrast to land rights under customary international law, the right has the advantage of a remedy before an international human rights body, the HRCte.
4.2.4.3. Self-Determination
The main provisions containing the right of all peoples to self-determination are common Ar-ticle 1 ICESCR and ICCPR, ArAr-ticle 1(2) UNCh and ArAr-ticle 20(1) AfCHPR. In addition, it forms part of customary international law,173 and is regarded by some as a norm of ius
co-gens.174 A distinction is generally made between internal and external self-determination,175 al-though the terminology is not used consistently. The internal or qualified element refers to meaningful participation in the political, economic and cultural development within a state.176 Thus, this notion concerns the relationship between a people and its own state.177 In the case
168 cf UN HRCte Ilmari Länsman et al v Finland, Communication No 511/1992, UN Doc CCPR/C/49/D/511/1992 paras 9.4-9.8.
169 But see Åhrén (n 122) 94 who seems to suggest that the prohibition is absolute. UN HRCte Ángela Poma Poma
v Peru, Communication No 1457/2006, UN Doc CCPR/C/95/D/1457/2006 paras 7.4-7.7 show, however, that the
“denial of the right” is a disproportionate interference, and hence a violation, while any substantial interference must be assessed in light of the principle of proportionality that the HRCte explicitly mentions.
170 Poma Poma case (n 169) paras 7.4-7.7. 171 ibid para 7.2.
172 Katja Göcke, ‘The Case of Ángela Poma Poma v. Peru before the Human Rights Committee’ (2010) 14 Max Planck Yearbook of United Nations Law 337, 368.
173 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
not-withstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 para 52; East Timor (Portugal v Australia) [1995] ICJ Rep 102 para 29: erga omnes character.
174 Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford University Press 2008) 51;
Year-book of the International Law Commission 1966-II 248 para 3.
175 Robert McCorquodale, ‘Self-Determination: A Human-Rights Approach’ (1994) 43(4) International and Com-parative Law Quarterly 857, 863; CERD ‘General Recommendation 21’ (1996) UN Doc A/51/18 para 4. 176 Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, materials,
and commentary (3rd edn, 2013) 160 para 7.13; Reference Re Secession of Quebec (Supreme Court of Canada)
[1998] 2 SCR 217 para 126.
177 Patrick Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federal-ism’ in Christian Tomuschat (ed), Modern law of self-determination (M Nijhoff 1993) 101.
of external self-determination, the framework of an existing state is left – for example by cre-ation of a new state or free associcre-ation with another state – in order to determine the status on an international level.178 Taking the form of secession, this latter dimension is – outside the context of decolonization - at best recognized as a remedial right where a people is subjected to alien domination or exploitation, is denied any meaningful participation or subjected to gravest abuses of human rights.179 These are not scenarios typical to deforestation activities. Rather, what is relevant here is the internal element.
It has become accepted that different peoples are entitled to different levels of self-determina-tion.180 While all peoples have the right to internal and – in the extraordinary circumstances set out above – external self-determination, indigenous peoples in addition benefit from a more extensive internal dimension encompassing the autonomy, self-government and land rights discussed before.181 Accordingly, both the CESCR and the HRCte have referred to com-mon Article 1 ICESCR and ICCPR when expressing concern over deforestation in indigenous lands and non-recognition of such lands.182 In the internal dimension, the right to self-determi-nation does, however, provide no additional rights to indigenous peoples, but rather is to be understood as a totality of rights under this overarching concept. It can nevertheless be a use-ful tool to articulate a collective claim.183
With respect to the general public, the central element for present purposes is the economic aspect as articulated in Article 1(2) of the Covenants. Firstly, in exploiting natural resources, the state must be procedurally accountable.184 But the right also has substantive implications in this regard: Natural resources must be exploited to the benefit of the state’s people.185 While the state enjoys a considerable margin of appreciation in ensuring that this is the case, Article 1(2) of the Covenants would be violated if resources were exploited to the exclusive benefit of a small part of the population or by foreign private companies.186 In Liberia, logging licenses used to be given to associates of then-President Charles Taylor and profits were used
178 Secession of Quebec case (n 176) para 126; CERD GR 21 (n 175) para 4.
179 Secession of Quebec case (n 176) paras 131-134; Decision Regarding Communication 75/92 (Katangese
Peo-ples‘ Congress v Zaire) (AfComHPR, 1995) para 6; Accordance with International Law of the Unilateral Decla-ration of Independence in Respect of Kosovo (Separate Opinion of Judge Cançado Trindade) [2010] ICJ Rep
523 paras 175, 176, 205, 206, 239 and 240. 180 Joseph and Castan (n 176) 161 para 7.16. 181 ILA interim report (n 134) 11.
182 CESCR ‘Concluding Observations on Cambodia’ (2009) UN Doc E/C.12/KHM/CO/1 para 15; UN HRCte ‘Concluding Observations on Canada’ (1999) UN Doc CCPR/C/79/Add.105 para 8.
183 But note that the HRCte has found self-determination claims non-justiciable under the individual communica-tion mechanism, cf Joseph and Castan (n 176) 164 para 7.24 and 7.25.
184 Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and
Cul-tural Rights: Commentary, cases and materials (Oxford University Press 2014) 52.
185 Antonio Cassese, Self-determination of peoples: A legal reappraisal (Cambridge University Press 1995) 55–56. 186 ibid.
