Master Thesis Public International Law
THE POTENTIAL OF THE RIGHT OF
SELF-DETERMINATION TO COMBAT
CLIMATE CHANGE
Climate Change, Self-Determination and the Right of Peoples to Freely
Dispose of their Natural Resources
Author: Jolein Ilse Holtz
Thesis Supervisor: dr. mr. P.A. Hildering
27 July 2018
ABSTRACT
A report of the Intergovernmental Panel on Climate Change enumerates the effects of climate change; an increase of droughts, desertification, deforestation and consequently a decrease in crop yield and food security. In short: climate change is impacting natural resources. Control over natural resources is classically a State’s attribute, however, under the human rights regime it is also a right of peoples. The right of peoples to freely dispose of their natural resources is codified in paragraph 2 of the article on the right of self-determination. Self-determination is recognised as an important right with its inclusion in article 1 of both the International Covenant on Civil and Political Rights as the Covenant on Economic, Social and Cultural rights, and the recognition as producing obligations erga omnes. However, its second paragraph remains absent from human rights advocacy. The current research explores the potential of self-determination, and specifically its second paragraph, to address the effects of climate change. It argues that despite the fact that this provision has not been regularly used in practice, there is potential within it to address these effects. The collective character of the right makes it suitable to such a global problem: they both go beyond borders. This constitutes the reason why this research focusses on self-determination. It will try to demonstrate that the control over natural resources is moving from a State-approach, towards an approach where peoples play an important role. Moreover, it will provide arguments why, if and how to move towards an interpretation of self-determination which encompasses this problem: a move towards sustainable self-determination.
Keywords: self-determination – natural resources – peoples – indigenous peoples – climate
TABLE OF CONTENTS
ABSTRACT ... I
TABLE OF CONTENTS ... II
LIST OF ABBREVIATIONS ... III
1.INTRODUCTION ... 1
2.THE POTENTIAL OF THE RIGHT OF SELF-DETERMINATION ... 4
2.A. Addressees of the Right of Self-Determination ... 6
2.A.I. The Role of Indigenous Peoples as Addressees ... 7
2.A.I.i. An African Approach to Indigenous Peoples ... 8
3.THE POTENTIAL OF THE RIGHT TO FREELY DISPOSE OF NATURAL RESOURCES ... 11
3.A. States versus Peoples ... 11
3.A.I. A State’s Affair ... 13
3.A.II. A Peoples’ Affair ... 14
3.B. Means of Subsistence ... 17
3.B.I. Travaux Préparatoires ... 18
3.B.II. Prevailing Application ... 19
3.C. An Inherent Right of Peoples ... 21
4.THE POTENTIAL OF THE RIGHT OF SELF-DETERMINATION WITHIN THE CLIMATE CHANGE REGIME ... 23
4.A. The Potential of International Environmental Law ... 23
4.A.I. The Convention of Biodiversity ... 24
4.A.II. Community-Based Property Rights ... 25
4.B. Example Case: Self-Determination and the Dhulbahante Pastoralists ... 26
4.B.I. The Dhulbahante as Peoples ... 26
4.B.II. The Dhulbahante and their Natural Resources ... 27
5.CONCLUSION ... 29
LIST OF ABBREVIATIONS
ACHR African Convention on Human and Peoples’ Rights
ACmHR African Commission on Human and Peoples’ Rights
ACtHR African Court of Human and Peoples’ Rights
CBD Convention on Biodiversity
CBPR Community-Based Property Rights
CESCR Committee on Economic, Social and Cultural Rights
Common article 1 Refers to the right of self-determination as codified in article 1 of both
the ICCPR and the ICESCR
COP Conference of the Parties
GC General Comment
HRC Human Rights Committee
IACtHR Inter-American Court of Human Rights
IACmHR Inter-American Commission on Human Rights
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ILC International Law Commission
IPCC Intergovernmental Panel on Climate Change
UN United Nations
UNESCO United Nations Educational, Scientific and Cultural Organization
1. INTRODUCTION
On the Sool plateau in Somaliland, the way of life of the Dhulbahante pastoralists, a nomadic peoples, is threatened.1 They are reliant upon access to natural resources, not just economically, but for their survival. The Dhulbahante’s way of life is dependent on the availability of green grasslands and acacia forests, which are the resources needed for their livestock.2 They rely on these resources on a day-to-day basis. Increasing droughts in the region have caused desertification of the lands and this, in turn, has resulted in the decrease of green grasslands and acacia forests.3 There is evidence that these droughts are caused by climate change.4
Climate change is impacting (access to) natural resources. The Intergovernmental Panel on Climate Change (IPCC) noted that climate change will, amongst other things, increase the severity of droughts, cause desertification, deforestation and a decrease in crop yield and food security.5 The aforementioned climate change impacts are potentially catastrophic for the Dhulbahante, but also for other communities leading a similar nature-based way of life.6
The indicated effects by the IPCC touch upon basic human rights such as the right to life, food and water.7 Another right affected is the right of self-determination, as defined in article 1 of the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) (common article 1). Its second paragraph speaks of the right of peoples to freely dispose of their natural resources. This research will look into the right of self-determination, specifically its second paragraph, to answer the following research question:
‘The potential of the right to determination to combat climate change: can self-determination, and specifically the right of peoples to freely dispose of their natural resources, address the effects of climate change on natural resources?’
1 Candlelight for Health, Education and Environment (CHEE) Report, ‘The Impact of Climate Change on Pastoral
Societies of Somaliland’ (2009), pp. 2-3.
2 Ibid, p. 22.
3 Oxfam Novib Media Briefing, ‘A climate in crisis. How climate change is making drought and humanitarian
disaster worse in East Africa’ (27 April 2017)
< https://www.oxfam.org/sites/www.oxfam.org/files/file_attachments/mb-climate-crisis-east-africa-drought-270417-en.pdf> accessed 25 July 2018, p. 2.
4 See Save the Children Somalia, ‘Resilience of households’ livelihoods to hazards in Somaliland’, report
(September 2012), pp. 21-23.
5 Timo Koivurova, Sébastien Duyck, Leena Heinämäki, ‘Climate Change and Human Rights’ in Erkki Hollo et
al., Climate Change and the Law (Ius Gentium: Comparative Perspectives on Law and Justice volume 21, Springer, Dordrecht 2013).
6 Jérémie Gilbert, ‘The Right to Freely Dispose of Natural Resources: Utopia or Forgotten Right?’ (2013) 31
NQHR 314, pp. 314–341.
Hence, this research will look into the relation between climate change, self-determination and natural resources. The right of self-determination is usually associated with de-colonialism, but it has been recognised that it also applies outside of this context.8 Its position as article 1 of both the ICCPR and the ICESCR is reflective of the recognised position as necessary prerequisite for guaranteeing, observing, promoting and strengthening individual human rights.9 Although its importance is recognised, the potential of self-determination in the area
of natural resources remains, as will be shown, largely unexplored.
Self-determination is the only collective human right within the human rights regime and its collective character might be of great potential when applied to climate change. This research uses the term “peoples” instead of “people” or “individuals” as to underline this special characteristic of the right to self-determination. “People” can be taken too broad (world population) or can be tied to territorial limits (of a State). By using “peoples” in both the ICCPR and ICESCR, these bodies also wanted to make such a distinction.10 Holding to individuals
and individual rights, would adhere to the collective character. This character is what makes self-determination the right to combat climate change: it goes beyond borders and conceptions and can address problems in areas, instead of individual problems. Additionally, it could possibly create a bigger effect by protecting groups, instead of separate individuals. Climate change needs to be addressed quickly. When large groups raise an issue, the chances might improve of being listened to and, ultimately, for policies to change. This feeling of “collectiveness” could be important to realise sustainable policies and can only be found in the international Human Rights regime within the right of self-determination. However, this right is not uncontested, which is one of the reasons why an appeal on the basis of self-determination is not often granted.11 Yet, as will be discussed in more detail, the right has evolved over time and can continue to adapt to an ever changing state of affairs.12
8 See Daniel Thürer, Thomas Burri, ‘Self-Determination’ in Max Planck Encyclopaedia of Public International
Law Online <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e873> accessed 25 July 2018.
9 HRC ‘General Comment No. 12, The right to self-determination of peoples (Art. 1)’ (13 March 1984)
HRI/GEN/1/Rev.1, para. 1.
10 UNCHR ‘Report of the 8th session, 14 April-14 June 1952’ E/CN.4/669.
11 See for example Chief Bernard Ominayak and Lubicon Lake Band v. Canada (26 March 1990) HRC
CCPR/C/38/D/167/1984, the claim on the right of self-determination was denied because they believed under OP-I of the OP-ICCPR only individuals could claim violations of individual rights. OP-In Diergaardt et al v Namibia (25 July 2000) HRC U.N. Doc. CCPR/C/69/D/760/1996 the right was used as interpretational standard for other provisions. For a further analysis see Ben Saul, David Kinley, Jacqueline Mowbray, International Covenant on Economic,
Social and Cultural rights: Commentary, Cases and Materials (OUP, Oxford 2014).
Paragraph 2 of the right to self-determination speaks of the right of peoples to freely dispose of their natural resources. Although natural resources, and the control thereover, is a debated area of law, whereas States want to keep every bit of control over their resources, there is potential within this provision.13 This potential was already discovered by Schrijver, who articulated that responsibility to exercise sovereignty over resources for the benefit of the entire humankind, can be used to tackle the challenges the world is facing, such as food shortages, in order to pursue sustainable development.14 To explore this potential, this research will not focus on the right of external self-determination15, but only on the right to internal self-determination.16 In unveiling the potential of self-determination in light of climate change, this research does not need to touch upon secession and subsequent States’ apprehensiveness towards this issue.17 The aim is to protect as many people(s) as possible from the effects of climate change, by looking into when their right of self-determination is violated.
To uncover the potential of the right of self-determination, this research is structured as follows. The first chapter will examine the scope and content of the right to self-determination. It will look into its origins to further see its development and its applicability to the current issue. More specifically, it will look into the addressees of the norm: who can constitute a “peoples”? The second chapter will consider the relationship between self-determination and natural resources. Hereby, the scope and content of the second paragraph of common article 1 will be reviewed. Natural resources are classically an attribute of State sovereignty, but paragraph 2 also attributes the right to peoples. The relationship between these, at first glance conflicting, rights will be examined. The paragraph also speaks of ‘means of subsistence’ as the minimum of the right. Consequently, the chapter will examine this excerpt as to see when climate change might exceed this minimum. Article 25 of the ICESCR repeats the right of peoples to freely dispose of their natural resources, and labels it an “inherent”. How might this provision contribute to the research? The third chapter will research the position of self-determination and natural resources within the climate change regime. The research does not
13 See for an extensive debate on sovereignty over natural resources Nico Schrijver, Sovereignty over natural
resources: balancing rights and duties in an interdependent world (CUP, Cambridge 1997) pp. 242-286.
14 Nico Schrijver, Sovereignty over natural resources: balancing rights and duties in an interdependent world
(CUP, Cambridge 1997) pp. 376-377.
15 External self-determination means peoples can determine their political status, be free of alien domination and
ultimately the form their own independent State.
16 Internal self-determination concerns the freedom to choose their political status within a State and meaningful
political participation (ICCPR) and the freedom to pursue their social, economic and cultural development without outside interference (ICESCR).
17 See Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (CUP, Cambridge 1995) for an
solely aspire to see where the realisation of human rights is impaired or barred, but what constitutes a human rights violation. The focus will be not only on the way climate change can become a consideration within human rights law, but also on whether human rights can become part of the climate change regime. For this reason, a portion of this research will be dedicated to the broader approach of natural resources and climate change. Moreover, the third chapter will more practically apply the theory of the first and second chapter, by reviewing the case of the Dhulbahante pastoralists. This research will conclude by an appraisal of the right to self-determination: can it address the effects of climate change on the natural resources of peoples? The current research will, by virtue of its research question, contribute to several Sustainable Development Goals.18
2. THE POTENTIAL OF THE RIGHT OF SELF-DETERMINATION
To get an accurate view of the right of self-determination and to reveal its potential, this chapter will begin with a short history of the right. The historical development will reveal how the right has been applied, which provides an insight in whether it can address the current global problem of climate change. In addition, this chapter will look into the addressees of the norm.
The political origins of the right to self-determination go back to the Declaration of Independence of the United States in 1776. Subsequently, it was also used in the French Revolution and at the end of the 19th century as the “principle of nationalities”. This principle
played a role in the formation of new States. The term “self-determination” first appeared in Versailles, where after the First World War a peace settlement was concluded. The League of Nations, predecessor of the United Nations (UN), used the term in its inter-war policy, particularly where it concerned European minorities and the colonial mandate system. Thereafter, the term was incorporated in the 1945 Charter of the United Nations and in 1960 in the Declaration on the Granting of Independence to Colonial Countries and Peoples.19
In 1976 the principle was codified in common article 1 of the ICCPR and ICESCR. Its position as necessary prerequisite for respect for individual rights, was already discussed in the drafting history.20 While the article first proclaimed ‘all peoples shall have’, it was changed to ‘all peoples have’, intended to reiterate the permanent character of the right. Self-determination
18 With the focus on self-determination and its specifics, this research will contribute to SDGs 2, 3, 6, 10, 11, 12
13, 15 and 16.
19 Cassese (n 17), pp. 11-43.
20 Ibid, p. 47. The Soviet Union advocated for this view, which prevailed because of strong support of developing
is a continuing right.21 Besides colonial peoples, rights of minorities were also considered22 and some States wanted self-determination to cover peoples oppressed by despotic governments.23 Although mostly Western States opposed the provision, arguing self-determination was merely a political principle and not a justiciable right, the article was adopted in 1955.24 By that time, only a few States maintained the right should only be applicable to colonial situations.25
Over time, the right of self-determination is identified as producing obligations erga omnes by the International Court of Justice (ICJ) in its Advisory Opinion on the construction of a Wall in Occupied Palestinian Territory (Wall case).26 The ICJ confirms the obligation to promote the realisation of the right of self-determination and to respect it, in conformity with the provisions of the United Nations Charter.27 Furthermore, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, contains the duty of States to ‘refrain from any forcible action which deprives peoples (…) of their right to self-determination’.28 By establishing its erga omnes status, these obligations are owed to the international community as a whole. This, implicitly, recognises the undeniable and universal character attached to norms that produce obligations erga omnes, hence of self-determination. The whole community has an interest in preventing a breach of this right.29 The status as peremptory norm, jus cogens, has gained scholarly attention.30 However, States and judicial bodies have not disclosed anything about this possibility.31 Nevertheless, its recognition as
21 Ibid, p. 54. Continuing meaning that one always has this right.
22 UN Doc. (1950) Annexes, A/C.3/L.96, 17. The Third Committee, however, opposed to this proposed provision
by the Soviet Union.
23 Cassese (n 17), p.49. 24 Ibid, p. 51.
25 Ibid. These States include Greece, Saudi Arabia, Liberia, Syria, Lebanon and Pakistan. They feared it would
confer rights on minorities, hence disrupting State sovereignty. Most countries, however, had made explicit that this was not the case.
26 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall Case) (Advisory
Opinion) [2004] ICJ Rep 136, para 88.
27 Ibid.
28 UNGA ‘Declaration on Principles of International Law concerning Friendly Relations and Cooperation among
States in accordance with the Charter of the United Nations’ (24 October 1970) A/RES/2625(XXV), p. 4.
29 Barcelona Traction (Belgium v Spain) (Judgment) [2009] ICJ Rep 3, para 33.
30 Cassese (n 17); Robert McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 ICLQ 857;
Matthew Craven, ‘The European Community Arbitration Commission on Yugoslavia’ (1995) 66 BYIL 333.
31 The International Law Commission (ILC), however, did enumerate in its draft articles on State Responsibility
the international norms they consider to be of jus cogens; prohibition of aggression, genocide, crimes against humanity, war crimes, other basic principles of humanitarian law and self-determination. See ILC Draft Articles on State Responsibility Provisionally Adopted by the International Law Commission on First Reading, Article 29, para. 2, in: Report of the International Law Commission to the General Assembly on the work of its forty-eighth session, 11/2 Yearbook of the International Law Commission (1996) p. 61.
erga omnes does point to self-determination being perceived as eminent legal norm which
confers obligations onto the international community.
2.A. Addressees of the Right of Self-Determination
Although the right of self-determination is regarded as important, this importance would be left unused if no one could actually claim this right. This paragraph, accordingly, looks into the addressees of the right of self-determination. As mentioned, even in the drafting history, it was already recognised that the right would also apply outside of the de-colonialism context, but the manner in which this would happen was not disclosed. Hence, after the decolonisation era, the question of the meaning of the principle outside the colonial context arose.32
Although the Human Rights Committee (HRC) did confirm that the principle ‘applies to all peoples, not merely colonised peoples’,33 no universally accepted definition or list of criteria
was ever given by the HRC or Committee on the Elimination of Racial Discrimination.34 During the drafting, delegates also debated about the inclusion of “nations”. However, it is assumed “peoples” covers most nations, except for those composed of sub-state minorities. This also underlines that peoples may constitute only a part of a State’s population.35
Despite there being no universal definition of peoples, different interpretations and different guiding principles have been developed in international law. A guideline which is arguably most accepted, is one set up by a group of UNESCO experts.36 They formulated criteria of which some or all need to be fulfilled to qualify as a peoples. These criteria are: sufficiently strong ties to the territory, a common historical tradition, a racial or ethnic identity, cultural homogeneity, linguistic unity, religious and ideological affinities, territorial connection, and a common economic life.37 Such a group can also be a peoples by virtue of their consciousness that they are.38 In Mgwanga Gunme v Cameroon, a case under the African Charter of Human and Peoples’ Rights (ACHR), it was recognised that the UNESCO guidelines can, when
32 Elisa Freiburg, ‘Land Grabbing as a Threat to the Right to Self-Determination: How Permanent Sovereignty
over Natural Resources Limits States' Involvement in Large-Scale Transfers of Land’ (2014) 18 Max Planck Yearbook of United Nations Law 507.
33 HRC ‘Concluding Comments on Azerbaijan’ (1994) UN Doc. CCPR/C/79/Add.38, para 6.
34 Sarah Joseph, Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and
Commentary (OUP, Oxford 2013). CERD is mentioned here because of their focus on racial and ethnic groups.
35 Ben Saul, David Kinley, Jacqueline Mowbray, International Covenant on Economic, Social and Cultural rights:
Commentary, Cases and Materials (OUP, Oxford 2014) p. 36.
36 Robert McCorquodale, ‘Rights of Peoples and Minorities’ in Moeckli et.al., International Human rights Law
(OUP, Oxford 2010) pp. 369-370.
37 See UNESCO ‘New reflections on the concept of peoples’ rights Final Report and Recommendations of an
International Meeting of Experts’ (1989) 11 HRLJ, pp. 446-447.
38 Kevin Mgwanga Gunme et al / Cameroon, African Commission on Human and Peoples’ Rights [2009]
applicable to a collective individuals, be used to define peoples. The African Commission on Human and Peoples’ Rights (ACmHR) found that the peoples of South Cameroon constituted a peoples on the basis of having a common history, linguistic tradition, territorial connection and political outlook.39
Since self-determination is incorporated in both the ICCPR and ICESCR, it deals with civil, political, social, economic and cultural rights. For this reason it is argued that different peoples are entitled to different “levels” of self-determination.40 Ouguergouz, judge of the African Court on Human and Peoples’ Rights (ACtHR), has described it as a ‘chameleon-like term (…) whose content is dependent on the function of the right concerned’.41 In this view, external self-determination is the “highest” achievable form of self-determination, which can only be obtained in exceptional circumstances. What the other levels might entail, besides different forms of internal self-determination, remains unclear.42 The door is potentially left open to
define, within existing guidelines, a group of peoples entitled to the free disposal of natural resources. Over time, some peoples have qualified as peoples entitled to self-determination, most notably indigenous peoples.
2.A.I. The Role of Indigenous Peoples as Addressees
Indigenous peoples have successfully claimed their right to (internal) self-determination the most.43 A specialised regime for rights of indigenous peoples exists. Indigenous peoples have a sacred connection to their land and are therefore arguably more dependent upon this land.44
The UN adopted various instruments that emphasise this distinctive position.45 This position
also extends to environmental policy and climate change. The possible catastrophic impacts of climate change on indigenous peoples are widely recognised. It is in this context that the term
39 Ibid, paras 167-178. 40 Joseph (n 34), para 7.15.
41 Fatsah Ouguergouz, The African Charter on Human and Peoples’ Rights: A comprehensive agenda for human
dignity and sustainable democracy in Africa (MNP, Leiden 2003), p. 211.
42 Joseph (n 34), para 7.15. 43 Gilbert (n 6) pp. 314–341.
44 Dorothée Cambou, Stefaan Smis, ‘Permanent Sovereignty over Natural Resources from a Human Rights
Perspective: Natural Resources Exploitation and Indigenous Peoples' Rights in the Arctic’ (2013) 22 Mich. St. Int'l L. Rev. 347, p. 354.
45 See UNESCO and Indigenous Peoples: Partnership to Promote Cultural Diversity (2006); Special Rapporteur
of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous People, 1, 34, UN Doc. E/CN.4/Sub.2/1986/7; Sub-Commission on Prevention of Discrimination and Protection of Minorities, Working Paper by the Chairperson-Rapporteur, Mrs. Erica-Irene A. Daes, on the concept of "indigenous people" (10 June 1996) UN Doc. E/CN.4/Sub.2/AC.4/1996/2; CERD, ‘General Recommendation XXIII; Declaration on the Rights of Indigenous Peoples’ (7 September 2007) G.A. Res. 61/295, 10, UN Doc. A/RES47/1; International Labour Organisation, ‘Convention concerning Indigenous and Tribal Peoples in Independent Countries’ (1989) (No. 169).
environmental self-determination emerged.46 This term has been developed to oblige nation-states to execute mitigation strategies and give a right to indigenous peoples to restrain their governments from practices which would endanger their cultural and physical survival.47 Tsosie, who conceptualised environmental self-determination, views indigenous communities as the embodiment of sustainability: their worldviews on how to use the land, cultural survival and preparing the land for future generations, are all aspects retrievable in the Brundtland Report’s definition of sustainable development.48 Subsequently, indigenous communities are vital to achieving sustainable development since they act as an example; extinction of the indigenous way of life would jeopardise the entire globe.49 Because of their ties to natural resources and the fact that indigenous peoples are often associated with sustainability, what entails indigenous will be explained. This will be done using a study conducted by a Working Group, established by the ACmHR, to define indigenous groups.50
2.A.I.i. An African Approach to Indigenous Peoples
The African approach to (indigenous) peoples is highlighted for several reasons. Firstly, the ACHR is the only human rights system which clearly separates collective rights from individual rights. The Charter contains several collective rights, indicative of the importance of the collective in Africa. The ACHR reiterates the ‘exclusive interest’ of peoples, whilst exercising it ‘with a view of strengthening African unity and solidarity.’51 Some view this as leaving it ambiguous whether the rights belong to peoples or the nation, whilst others see this as an expression of the fact that a State should act as a trustee of its peoples.52 What is clear,
however, is that the ACHR deals with the collective in a more extensive matter than the international human rights system. Their approach is thus interesting for this research. Secondly, African countries can be seen as a patchwork of different communities. There exists versatility in (ethno-cultural) groups, ranging in the thousands.53 Consequently, the study in Africa needs
46 Rebecca Tsosie, ‘Climate Change, Sustainability and Globalization: Charting the Future of Indigenous
Environmental Self-Determination’ (2009) 4 Envtl. & Energy L. & Pol'y J. 188, p. 212.
47 D. Kapua'ala Sproat, ‘An Indigenous People's Right to Environmental Self-Determination: Native Hawaiians
and the Struggle against Climate Change Devastation’ (2016) 35 Stan. Envtl. L. J. 157, p. 160.
48 Tsosie (n 46), p. 191. 49 Ibid.
50 ACmHR Res 51 (XXVIII) 00 ‘Resolution on the Rights of Indigenous Peoples’ Communities in Africa’ (2000)
<http://www.achpr.org/sessions/28th/resolutions/51/> accessed 25 July 2018.
51 See African Charter on Human Peoples’ Rights article 21, particularly paras 1 and 4.
52 Richard Kiwanuka, ‘The Meaning of Peoples in the African Charter on Human and Peoples’ Rights’ (1988) 82
AJIL 80, p. 80. See for a more elaborate discussion Peter Jones, ‘Human Rights, Group Rights, and Peoples’ Rights’ (1999) 21(1) HRQ 80.
53 Harvard University created a ‘People's Atlas of Africa’,
to cover these communities, possibly providing for an influential and comprehensive definition. Thirdly, Africa comprises of several developing countries. Developing countries have contributed the least to climate change, but feel the effects the most.54 Hence, it is valuable to analyse an approach of countries, or in this case continent, that is close to the problem at hand. In Africa, the term indigenous is disputed, as some African States claim all Africans are indigenous to Africa.55 To avoid further controversy, the Working Group started off by
declaring “indigenous” did not require a strict definition. Elaborately, they established all Africans are in principle indigenous. It was, however, recognised that over the years certain groups within existing States, had become marginalised and in need of special protection.56 They avoided the connotation of who occupied the land first and instead wrote:
‘It is today a term and a global movement fighting for rights and justice for those
particular groups who have been left on the margins of development and who are perceived negatively by dominating mainstream development paradigms, whose cultures and ways of life are subject to discrimination and contempt and whose very existence is under threat of extinction.’57
Several criteria can be distilled from this report. Firstly, marginalisation, discrimination and exclusion from the developmental process. Secondly, cultural distinctiveness and lastly, self-identification. The Working Group did not expressly require recognition by others.58 They put together a non-exhaustive list of which groups use the term indigenous to address human rights violations. This list embraces hunter gatherers, pastoralists, as well as small scale farmers.59 The Working Group put down a theoretical framework of how they conceive the term indigenous. Although it has been adopted by the ACmHR, it is not an undisputed definition.60 In light of self-determination the Working Group seemed to shy away from fully applying this
54 Schrijver (n 14), pp. 232, 233.
55 Kealeboga Bojosi, George Mukundi Wachira, ‘Protecting indigenous peoples in Africa: An analysis of the
approach of the African Commission on Human and Peoples’ Rights’ (2006) 6 AHRLJ 382, p. 394.
56 Ibid, p. 396.
57 ACmHR, ‘Report of the African Commission’s Working Group of Experts on Indigenous
Populations/Communities, Submitted in accordance with the Resolution on the Rights of Indigenous Populations/Communities in Africa’ (The Report) (2005), para 87.
58 ACmHR Res 65 (XXXIV) 03 ‘Resolution on the Adoption of the Report of the African Commission’s Working
Group on Indigenous Populations/Communities’ (Resolution on the Adoption of the Report) (2003) <http://www.achpr.org/sessions/34th/resolutions/65/> accessed 25 July 2018 and Bojosi (n 55), pp. 396-397.
59 The Report (n 57), paras 15-19. 60 Bojosi (n 55), p. 400.
interpretation. They reiterated that the right has to be exercised conform the territorial integrity of States.61
Even though the latter could be interpreted as dampening the impact by using the State as starting point, instead of the communities/groups within the State, the approach does possess some inspiring aspects. Instead of the clear guidelines of the UNESCO experts, the Working Group follows a more teleological approach. The definition of indigenous is dependent on the desired aim: protecting the marginalised and vulnerable groups in Africa. This can also be derived from the Ogoni case, in which the Commission also implicitly acknowledged that, by not protecting Ogoniland as part of its territory from foreign exploitation, the Ogoni’s, as inhabitants of that territory, could invoke their right to freely dispose of natural resources as codified in article 21 of the ACHR.62 No explicit mention was made in the evaluation of article 21 of the specific ties to their territory. The fact that they were a marginalised group, whose existence was threatened, was enough to recognise them as indigenous peoples.63 In the
Endorois-case, the Commission used the wording of the Working Group to conclude that the
Endorois ‘have (…) become marginalised in their own country and they need recognition and protection of their basic human rights and fundamental freedoms.’64 The Commission did add the criterion of “distinctiveness” to their qualification. The Endorois were characterised as distinct because they, as a clan of the Tugen sub-tribe, which is part of the larger Kalenjin community, share a common history, language and religion.65
A teleological approach to peoples seems appropriate and fits into the abovementioned theory of self-determination being a layered right: definitions of peoples will be contingent to the goal of protecting them. There has not been a lot of practice of such an approach. However, a couple of things can be derived from the preceding paragraphs: the right of self-determination applies outside of the context of colonialism, has different aspects which might call for different definitions of peoples, and the concept of indigenous peoples is, when not interpreted too narrowly, suitable to the problem of climate change. The latter would benefit from an
61 Ibid, p. 402.
62The Social and Economic Rights Action Center and the Center for Economic, and Social Rights/Nigeria
(SERAC/Ogoni), African Commission on Human and Peoples’ Rights [2001] Communication No.155/96, para 44.
63 See Wilmien Wicomb, Henk Smith, ‘Customary communities as ‘peoples’ and their customary tenure as
‘culture’: What we can do with the Endorois decision’ (2011) AHRLJ 422, in which they conclude the definition of ‘peoples’ does not have to divide communities in terms of their indigeneity or aboriginality in order to protect their (land) rights.
64 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of
Endorois Welfare Council v Kenya (Endorois Case), African Commision on Human and Peoples’ Rights [2009]
Communication No. 276, para 148.
interpretation such as that of the Working Group of the ACmHR.
3. THE POTENTIAL OF THE RIGHT TO FREELY DISPOSE OF NATURAL RESOURCES
Now that possible addressees of the norm have been explored, it is relevant to look into which right they can claim based on the second paragraph of common article 1. This second paragraph expresses the often called economic self-determination of peoples.66 It states:
‘All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.’67
The provision is included because of the common historical origin of self-determination and control of natural resources. Both find its roots in the de-colonisation era.68 With the de-colonisation the need arose to ensure that newly formed States could freely access and exploit their natural resources. In this way political independence with economic self-reliance was supported and possible control over resources could be reclaimed from foreign interests.69
Its definition can nowadays perhaps move beyond this economic sphere, making “sustainable self-determination” the more fitting terminology. Accordingly, it can protect social, economic and environmental needs, corresponding with its position as civil, political, social, economic and cultural right. This is at least something to strive for. To exploit this potential in light of climate change, the remainder of the chapter will look further into the second paragraph and other related provisions as to see its scope and content and what its position is, or could be, within the research topic.
3.A. States versus Peoples
To review the scope and content of paragraph 2 in light of the current issue, an understanding is necessary of what comprises the free disposal of natural wealth and resources for their own ends. Paragraph 2 of the right of self-determination is inextricably tied to the international
66 This term is also used in the ICESCR and ICCPR commentaries (Saul (n 35), Joseph (n 34)).
67 According to HRC, General Comment No. 12 (Vol. I), 184, paragraph 5, this entails duties for States as well as
for the international community.
68 Cassese (n 17), pp. 90, 99.
69 Francesco Francioni, ‘Natural Resources and Human Rights’ in Elisa Morgera (ed) et.al., Research Handbook
natural resources regime. Within this regime, the right is both attributed to peoples as well as to States. An analysis of how these two relate and, consequently, how far the free disposal for peoples reaches, will reveal whether and when a peoples’ right might be impaired by the effects of climate change.
The natural resources regime is elaborated in various instruments, such as the UN General Assembly (UNGA) Resolution on Permanent Sovereignty over Natural Resources and the Charter of Economic Rights and Duties of States.70 Paragraph 1 of the latter attributes the right not only to States, but also to peoples.71 It confines a State’s permanent sovereignty over natural resources to being in favour of the well-being of the people constituting the State. This formulation can be construed as implying peoples are the ultimate rightholders, since their well-being establishes the limits of a State’s permanent sovereignty.72 This view is reiterated by Cassese, who wrote in his work on the right of self-determination:
‘Given that the people of every sovereign State have a permanent right to choose by whom they are governed, it is only logical that they should have the right to demand that the chosen central authorities exploit the territory’s natural resources so as to benefit the people.’73
It follows that the State appears confined by the will of the people it governs in regards to the use of natural resources. Moreover, it implies the general assumption that a democratic State, as representative of the people, will do so. Consequently, only in extreme cases where it is abundantly clear the State prioritises only a small part of its population and disregards the majority, an obvious violation occurs.74 Similarly, in cases where a State enters into an agreement which gives another party access to their natural resources, and the well-being of its citizens is not prioritised, the right is impaired.75 This interpretation clarifies the seemingly controversial idea of natural resources as being both a States’ as well as a peoples’ right. However, as will be explored, this narrow reading has eroded over time.
70 UNGA Res 1803 (XVII) ‘Resolution on Permanent Sovereignty over Natural Resources’ UN GAOR, 17th sess,
1194th plen mtg (14 December 1962) UN Doc A/RES/1803(XVII); UNGA Res 3281 (XXIX) ‘Charter of Economic Rights and Duties of States’ UN GAOR, 29th sess, 2315th plen mtg, Agenda Item 48, Supp No 31 (12 December 1974) UN Doc A/RES/3281(XXIX) (12 December 1974).
71 Freiburg (n 32), p. 515. 72 Cassese (n 17), pp. 144-145. 73 Ibid, pp. 55-56.
74 See James Anaya, ‘Contemporary Definition of the International Norm of Self-Determination’ (1993) Transnat'l
L. & Contemp. Probs. 131, who wrote: ‘To understand self-determination as concerned only with narrowly defined, mutually exclusive "peoples" is to diminish the relevance of self-determination values in a world that is in fact evolving differently.’
3.A.I. A State’s Affair
The rapid development of international trade, investment and financial law impacted the development of the right, pushing it towards a state-centred policy of global cooperation and interdependency.76 “State-centredness” has also formed an obstacle in the drafting history of the article. Some States wanted the provision to read ‘permanent sovereignty’ instead of ‘freely dispose’.77 Differences arose between developed and developing States about its inclusion. Some considered it dangerous to include this provision, because it would possibly infringe upon international agreements, bar cooperation between States, discourage foreign investors and hinder the provision of aid to developing countries.78 Developed States wanted to keep
control of their natural resources, and developing countries wanted to protect their resources from being exploited by foreign investors and States.79
Although it is argued that the Westphalian idea of State sovereignty80 is no longer compatible with developments within international law81, the idea of permanent sovereignty over natural resources of States is still a reoccurring principle. Whereas the ICJ in its
East-Timor case abstained from ruling on the legal status of permanent sovereignty over natural
resources, in 2005 the ICJ, in its DRC/Congo case, recognised permanent sovereignty over natural resources as a norm of customary international law.82 The ICJ ruled on the basis of the UNGA Resolution above, which encountered some criticism, since the UNGA cannot produce legally binding resolutions.83 Several international law instruments have been adopted that vest the disposal over natural resources in the State. Examples are the 1986 Seoul Declaration84, the 1994 European Energy Charter Treaty85 and 1982 Convention on the Law of the Sea.86
76 Saul (n 35), p. 53.
77 Ben Saul, The International Covenant on Economic Social and Cultural Rights: Travaux Préparatoires
1948-1966. Vol I. (OUP, Oxford 2016), pp. 973-975.
78 Ben Saul, ‘The International Covenant on Economic Social and Cultural Rights: Travaux Préparatoires
1948-1966. Vol II.’, OUP: 2016, pp. 1662-1664.
79 See ibid. Moreover, this is also elaborated in paragraph 3.C.
80 This entails a form of state sovereignty based on the principle of territorial integrity as established in the Peace
of Westphalia of 1648.
81 See Ricardo Pereira, Orla Gough, ‘Permanent Sovereignty over Natural Resources in the 21st Century: Natural
Resource Governance and the Right to Self-Determination of Indigenous Peoples under International Law’ (2013) 14 Melb. J. Int'l L. 451, p. 452.
82 Armed Activities on the Territory of the Congo (DRC v Uganda) (Judgement) [2005] ICJ Rep 116, para 244. 83 Pereira (n 81), p. 454.
84 Which states ‘permanent sovereignty (…) is inalienable. A State may, however, accept obligations with regard
to the exercise of such sovereignty, by treaty or by contract, freely entered into.’
85 Article 18 expresses the sovereign nature of energy resources: ‘The Contracting Parties recognize state
sovereignty and sovereign rights over energy resources. They reaffirm that these must be exercised in accordance with and subject to the rules of international law.’
86 For example, it provides that the coastal State exercises ‘sovereign rights for the purpose of exploring it and
Besides the notion of the free disposal of natural resources as a peoples’ right, the permanent sovereignty of States over natural resources is not unrestricted. The emergence of the idea of sustainable development, and the international declarations flowing from this, limits the free disposal. The 1992 Rio Declaration on Environment and Development subjects permanent sovereignty of natural resources to environmental limits.87 The use must meet developmental and environmental needs of present and future generations (principle 3), and environmental protection must form an integral part of the decision-making progress (principle 4).88 Consequently, even when the disposal of natural resources is established as a State’s attribute, their sovereignty is limited. This points to a change in the interpretation of a State’s permanent sovereignty of natural resources towards a more modern conception, moving away from the strict Westphalian model.
3.A.II. A Peoples’ Affair
The permanent sovereignty does not specifically exempt States from general rules of international law, including human rights law.89 Within the human rights regime, the right of self-determination is clearly a right of peoples. Additionally, the recognition of indigenous land rights within the human rights regime has shown a changing paradigm towards a more community-based approach.90 Over time, within control over natural resources, a movement can be observed from the traditional position of State sovereignty, to one where peoples play an important role.
The shift towards a peoples approach of control of natural resources can be deduced from the adoption of different legal instruments, such as article 21(1) of the ACHR.91 Various case
law also contributes to this idea, for example the Ogoni case before the ACmHR.92 The Ogoni-people of Nigeria did not invoke their right to self-determination, but did invoke, amongst
not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State.’
87 Although not a binding legal instrument, the principles it embodies have been incorporated in binding
instruments such as the Aarhus Convention.
88 Saul (n 35), pp. 50-52.
89 See Pereira (n 81), p. 454; Jona Razzaque, ‘Resource Sovereignty in the Global Environmental Order’ in Elena
Blanco, Jona Razzaque (eds), Natural Resources and the Green Economy: Redefining the Challenges for
People,States and Corporations (MNP, Leiden 2012), pp. 83-90.
90 See on the recognition of indigenous land rights the cases below; Endorois case (n 64), Case of the Saramaka
People v Suriname, Preliminary Objections, Merits, Reparations and Costs, Inter-American Court of Human
Rights Series C No 172 (28 November 2007) and Maya indigenous communities v. Belize, Report No. 40/4, Inter-American Commission on Human Rights, Series L/V/II.122, doc. 5 rev. 1 (12 October 2004).
91 Article 21(1) of the ACHR reads: ‘All peoples shall freely dispose of their wealth and natural resources. This
right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.’
others, their right to freely dispose of natural resources as codified in article 21 ACHR.93 They accused the government of Nigeria of not involving them in the development of Ogoniland and failing to regulate or monitor the activities of Shell which resulted in the violation of various human rights.94 According to the ACmHR, States are not allowed to let private persons freely, and without impunity, interfere with the human rights of their citizens95 and are under an obligation to take steps to ensure that the rights of their citizens are not impaired.96 The
Commission concluded that by not stopping the Oil Company, and even facilitating their conduct, the government fell short of the minimum conduct which is expected of governments, therefore violating article 21(1) ACHR.97 The Ogoni in this case were qualified as indigenous peoples. Indigenous land rights were also recognised in the Endorois case. The natural resources in this case also covered non-traditional resources, in this case rubies located on the Endorois’ territory.98
The HRC has also linked article 1(2) to indigenous land rights. In Mahuika et al v New
Zealand the HRC stated that ‘economic activities may come within the ambit of article 27, if
they are an essential element of the culture of a community’.99 With this statement the HRC linked minority rights to rights to natural resources, in turn placing natural resources among the important features that make up a community. Additionally, in a report of the HRC on the Saami, the traditional means of livelihood as protected by article 27 ICCPR, are said to need full protection. The Saami should, according to the HRC, be able to have control over their land and resources, bearing in mind common article 1(2).100
A small, yet notable, extension of indigenous land rights occurred in Saramaka People v
Suriname before the IACtHR. The Saramaka, not being indigenous but tribal peoples, were
93 They invoked articles 2, 4, 14, 16, 18(1), 21, and 24 of the African Charter. 94 SERAC/Ogoni (n 62) (Judgement), para 55.
95 Velàsquez Rodrígeuz v. Honduras, Judgment, Inter-American Court of Human Rights Series C No. 4 (17 July
1988).
96 X and Y v the Netherlands, (App No 8978/80) (1985) Series A No 91, para 32. 97 SERAC/Ogoni (n 62), para 58.
98 Endorois case (n 64), paras 256, 262. By recognition if non-traditional resources, the ACmHR moved away
from a strict interpretation of indigenous and adhering natural resources.
99 Apirana Mahuika et al v New Zealand (27 October 2000) HRC U.N. Doc. CCPR/C/55/D/547/1993, para 9.2.
It concerns article 27 of the ICCPR, minority rights, which reads: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.’
100 HRC, ‘Concluding Observations: Norway’ (1999) UN Doc CCPR/C/79, para 16, 17. These land rights for
indigenous peoples are also reiterated in HRC, ‘Concluding observations: Canada’ (7 April 1999) UN Do. CCPR/C/79/Add.105, para 8. Self-determination and free disposal of natural resources is also written down in the Nordic Saami Convention 2005, article 3, on the rights of the Saami.
equated to indigenous by analogy in their legal situation relating to communal and property rights.101 These rights were, in turn, tied to self-determination and the right to freely dispose of natural resources.102 The rationale behind the right to freely dispose of natural resources for (tribal) communities is, according to the IACtHR, to ensure their physical and cultural survival as a community and to preserve their way of life:103 ‘The right to use and enjoy their territory would be meaningless (…) if said right were not connected to the natural resources that lie on and within the land.’104 The IACtHR further set forth the limitation hereto: when it is in the interest of society. In order to be in society’s interest, the limitation needs to be established by law, necessary, proportional and directed towards a legitimate aim of the democratic society. Sequentially, the Saramaka should not be denied their survival as a peoples.105 The Court concluded a violation of their communal property rights.106
The jurisprudence, as set out above, predominantly concerns indigenous rights to their natural resources. The application outside of the scope of indigenous peoples is noteworthy and needs emphasis. Notwithstanding the interpretation of the Working Group of the ACmHR, “indigenous peoples” is still interpreted in different ways. Classically, indigenous rights have been hinged on juris possidetis iuris107, largely based on effective occupation of land.108 Consequently, the invocation of their right could be dependent on the historical considerations. Although it is questionable whether this is the main reason for the recognition of indigenous land rights, since the cases cited contain no express referral to it, it would heavily limit the possibility of the free disposal of natural resources of different groups affected by climate change. In this scenario it will just cover those that have a historical claim to the land.
In several reports of the CESCR the free disposal of natural resources has also been expanded. The Commission expressed their concern about access to natural resources in cases of vulnerable and marginalised groups.109 In the report on the Democratic Republic of Congo (DRC) the CESCR expressed their concern about the peoples of the Province of Katanga. This
101 Saramaka case (n 90) paras 93-96. 102 Ibid, para 93.
103 Ibid, paras 121-122. 104 Ibid, para 122. 105 Ibid, para 128. 106 Ibid, para 196.
107 Uti possidetis iti possideatis literally translates to ‘as you possess, so may you possess'. It refers to the historical
background of indigenous peoples: they have a right because they were on the land first. The aim of this legal concept is to protect the possession of the possessor by maintaining the status quo against an adversary.
108 Michael Reisman, ‘Protecting Indigenous Rights in International Adjudication’ (1998) 89 AJIL 350, p. 352. 109 See CESCR, ‘Concluding Observations: Colombia’ (7 June 2010) E/C.12/COL/CO/5, para 10; CESCR,
‘Concluding Observations: Madagascar’ (16 December 2009) E/C.12/MDG/CO/2, para 12; CESCR, ‘Concluding Observations: Azerbaijan’ (22 December 1997) E/C.12/1/Add.20.
province is resource-rich and was continuingly exploited by mining activities to the detriment of its peoples. The CESCR urged the DRC to use the mining and its revenues to the benefit of the peoples of Katanga.110 In the CESCR report on Colombia, the Commission extended the right to natural resources by not only taking into account the indigenous peoples, but also the vulnerable and marginalised Afro-Colombian communities. They applied the regulations regarding indigenous right to the Afro-Colombian communities as well and urged the State to take into account their interests.111 In their Concluding Observations on Cambodia, the CESCR expressed their concern about loss of land because of degradation of natural resources, not only for the indigenous peoples, but also for rural communities who are dependent on land and forest resources for their survival.112
In conclusion, the free disposal of natural resources is clearly, at least conjointly, a peoples’ right, which is moving beyond the recognition of indigenous land rights towards a more community-based approach.
3.B. Means of Subsistence
To further examine what this right of peoples to their natural resources entails, it is important to delve deeper into the content of common article 1. It is particularly relevant to observe what entails ‘In no case may a people be deprived of its own means of subsistence.’ How might climate change apply to, and be incorporated into, the content of this phrase? Peoples may “in no case” be deprived of this, consequently it demarcates the minimum of self-determination. This wording also points to an indifference to whom (or what) is depriving them, hence climate change might be included as well.113 Additionally, ‘deprived of’ indicates a situation in which
forces outside of the community undermine their resources.114 However, to invoke a right of self-determination, one does not need this level of deprivation per se.115 Nevertheless, it is interesting to see its content in light of the collective character of the right of self-determination, since means of subsistence is regularly linked to individual human rights.116
110 CESCR, ‘Concluding Observations: Democratic Republic of Congo’ (16 December 2009) E/C.12/COD/CO/4,
para 13.
111 CESCR, ‘Concluding Observations: Colombia’ (7 June 2010) E/C.12/COL/CO/5, para 9.
112 CESCR, ‘Concluding Observations: Cambodia’ (12 June 2009) E/C.12/KHM/CO/1, para 15. Moreover they
mention this in light of article 1 of the ICESCR.
113 Saul (n 35), p. 116.
114 Hans Haugen., ‘The Right to Self-Determination and Natural Resources: The case of Western Sahara’ (2007)
3 Law Env't & Dev. J. 70, p. 73.
115 Saul (n 35), pp. 120-121.
3.B.I. Travaux Préparatoires
To examine what was meant by including this excerpt and to look into the potential in light of the current issue, the travaux préparatoires will be reviewed. “Means of subsistence” first appeared in a proposal of Australia in light of social security, in which it was used as a minimum for each individual’s social security.117 Furthermore, the Former Republic of Yugoslavia formulated a right to means of subsistence, consisting of a right to work, basic needs of an individual and his family, and a right to social welfare.118 Chile proposed the inclusion of the paragraph, to avoid exploitation of under-developed countries and to make sure that self-determination could not be impaired by tendentious interpretations.119 It was noted that means
of subsistence is included with the aim that peoples cannot be deprived of their natural resources, which form the very basis of their existence, which in turn could be the basis of exercising a right to self-determination. This did not mean that every deprival of natural resources gave rise to invoking this paragraph, the door was left open for commercial concessions as long as these were ‘reasonable and just’.120 Means of subsistence was not given a clear definition, but it was noted that it would be too far-reaching if one would interpreted it as that no peoples could ever be deprived of any of its natural wealth and resources by another State.121 The paragraph was supposed to protect ‘a weak or penniless government from seriously compromising a country’s future by granting concessions in the economic sphere’.122 Moreover, means of subsistence would comprise a lower standard for developing States, than for developed States, since developing States have lesser means to begin with.123 When asked for an example on a violation of this standard, examples of the Tanganyika tribe replacement and Nauru were mentioned, a situation in which Britain depleted and exploited the phosphate resources of Nauru.124
The aforementioned points to a high threshold for “means of subsistence” according to the drafting history. No definition was ever formed, but the examples given are extreme cases in which peoples are left without (barely) any natural resources. The proposal of Yugoslavia,
117 Saul Vol. I. (n 77), p. 58. 118 Ibid, p. 678.
119 Ibid, p. 973. 120 Ibid, pp. 981-984.
121 Saul Vol II. (n 78), p. 1618. The sentence of the second paragraph first also included ‘ (…) on the grounds of
any right that may be claimed by other States’, it was, however accepted that this could also happen by the State in question, therefore this part was omitted.
122 Ibid, p. 1667. 123 Ibid, p. 1668. 124 Ibid, p. 1671.
which was ultimately not incorporated into the Covenant, points to a more “basic needs-approach”. It is also argued in the travaux that these basic needs are much lower for developing countries, hence implying a high bar for depriving peoples of developing countries of their means of subsistence.
3.B.II. Prevailing Application
The last paragraph analysed the content of means of subsistence according to the drafting history, which transpired between 1948 and 1966. This paragraph explores the possibility of the evolution of the meaning to this day. Little has been said about the provision. As mentioned, “means of subsistence” is nowadays linked to other individual human rights, such as the right to food, water, life and employment.125 For example, in General Comment (GC) 15 of the CESCR on the right to water, the Committee expresses that in light of this excerpt ‘States parties should ensure that there is adequate access to water for subsistence farming and for securing the livelihoods of indigenous peoples.’126 In its GC 21 on the right to take part in
cultural life, the Committee points out that the rights of indigenous peoples must be protected to ‘prevent the degradation of their particular way of life, including their means of subsistence, the loss of their natural resources and, ultimately, their cultural identity’.127 The Committee differentiates these grounds, instead of linking them together by means of the right of self-determination. All factors listed in GC 21 have to do with self-determination, but this right is not mentioned, while it can prove useful in connecting and assessing these different aspects. By compounding, instead of differentiating these aspects, a deprivation of means of subsistence can be identified. Presently, it is argued the threshold is reached by the dispossession of indigenous land and community rights.128
As previously mentioned, no definition was given in the drafting history. The delegations seemed to assume a general interpretation of “means of subsistence”, since the definition was not expressly discussed. To identify the content of this assumption, some plain definitions given to this term are singled out. These include: ‘the action or fact of maintaining or supporting
125 Saul (n 35), p. 116.
126 CESCR, ‘General Comment No. 15, The Right to Water (Arts. 11 and 12 of the Covenant)’ (20 January
2003) E/C.12/2002/11, para 7.
127 CESCR, ‘General Comment No. 21, Right of everyone to take part in cultural life (art. 15, para. 1a of the
Covenant on Economic, Social and Cultural Rights)’ (21 December 2009) E/C.12/GC/2, para 36.
128 General Comment 15 links this threshold to the right to water. Saul (n 35) notes that this threshold of
indigenous peoples’ rights is a high one. It does not impede the “common” issue of proprietary rights to private actors to develop resources.
oneself, especially at a minimal level’129 and ‘the state of having what you need in order to stay alive, but no more’130 Additionally, concerning agriculture, which evidently involves natural resources, the following definitions are given: ‘denoting or relating to production at a level sufficient only for one's own use or consumption, without any surplus for trade’131 and ‘farming system providing a life style that is self-sufficient for the family of the farmer. There is little excess if any for marketing.’.132 The common denominator is a minimum of resources
needed for survival.133 In case of natural resources-based ways of life, when there are not enough resources to feed oneself and the family, the threshold of the deprivation of means of subsistence can be met. This would imply a lower threshold than the abovementioned, because in that case some residual resources can be left.134
The link between self-determination and individual human rights can be derived from the aforementioned common denominator. Indeed, especially water and food, are a minimum needed for survival.135 Furthermore, the nature of self-determination, with its position as a
prerequisite for individual human rights, confirms this position.136 Still, the link is not regularly made. The CESCR in its GC on cultural life, did first mention means of subsistence and “ultimately” loss of cultural life.137 An interpretation hereof is that means of subsistence is a stage before losing one’s cultural identity. However, it remains unclear what this would encompass in practice. The different interpretations do leave room for the right of self-determination as, from a collective perspective, protector of individual human rights. Nonetheless, the collective examples that are given point to a high standard of means of subsistence. In the case of climate change, leaving indigenous peoples aside, the bar of means of subsistence can be construed as the impairment of the natural resources to the extent that no
129 <https://en.oxforddictionaries.com/definition/subsistence> accessed 25 July 2018. 130 <https://dictionary.cambridge.org/dictionary/english/subsistence> accessed 25 July 2018. 131 <https://en.oxforddictionaries.com/definition/subsistence> at 1.2., accessed 25 July 2018. 132 <https://thelawdictionary.org/subsistence-agriculture/> accessed 25 July 2018.
133 See Magdalena Sepúlveda, The Nature of the Obligations under the International Covenant on Economic,
Social and Cultural Rights (Antwerpen, Intersentia, 2003), p. 212-214 in which she reiterates land is important
for means of subsistence.
134 Ibid. Sepúlveda identified a separate duty of States to avoid depriving peoples of the possibility to be
self-supporting on the basis of their work, therefore implying the same as this analysis.
135 The HRC has established a link between this paragraph and land rights of indigenous peoples and with
situations where peoples have been deprived of access to food and water, see Gilbert (n 6) p. 333 and e.g. cases
The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment, Inter-American Court of Human Rights
Series C No. 79 (31 August 2001) and Maya v Belize (n 88).
136 Freiburg (n 32), links the right to food and self-determination by stating: ‘Situations in which the local
population starves while large amounts of food are brought outside the country to serve foreign markets do not only conflict with the right to food (…) but also with the right to permanent sovereignty over natural resources.’
137 CESCR, General comment no. 21, Right of everyone to take part in cultural life (art. 15, para. 1a of the
