Reimagining International Law
Holly and Harry Jonas
Holly and Harry Jonas explain how imagination is changing the international legal landscape for indigenous people
Across the world, areas with high or important biodiversity are often located within Indigenous peoples' and local communities' conserved territories. Traditional and contemporary systems of stewardship embedded within cultural practices enable the conservation, restoration and connectivity of ecosystems, habitats in accordance with indigenous worldviews. In spite of the benefits these territories have for maintaining the integrity of ecosystems and human wellbeing, they are under increasing threat.
In parallel to this local dynamic, hard-fought UN negotiations are resulting in an ever-increasing amount of international law that is supportive of Indigenous peoples' and local communities' rights to self-determination. This includes: traditional governance systems and customary laws; knowledge, innovations and practices; territories, lands and natural resources; free, prior and informed consent; and information, decision making and access to justice.
In this context, Indigenous peoples often ask what their rights are at the international level. The answer to this crucial question is complicated for several reasons, including the fact that the provisions containing the rights are spread across a wide range of international instruments, each with its own particular focus. As a result, community members who want to know about their international right to respect for their customary laws, for example, will have to consult a wide range of different international instruments to determine the substance and context of that right. This is a difficult task, even for trained lawyers.
The diffuse nature of Indigenous peoples' rights in international law constitutes an injustice in itself, as it inhibits communities from identifying, understanding and subsequently asserting those rights. Countries that agree to minimum standards at the international level but do not uphold them at the national and local levels should be held accountable. Yet the often widespread lack of knowledge among indigenous communities and their supporting organisations about international law means that these issues either are not referenced at all, or are raised imprecisely and ineffectively. Despite an increasing number of provisions, the inaccessibility of international law itself further enables marginalisation, discrimination, eviction, and other forms of abuses of power that Indigenous peoples and local communities continue to face.
Legal NGO Natural Justice has produced The Living Convention as an innovative attempt to address this deficiency. While we cannot at this stage change the deep structure of the international legal framework, we can reimagine the organisation of those laws and the relationships among provisions in different international instruments that address similar issues. Developing a new reading of the current legal landscape fundamentally changes perceptions of the law and opens up new legal and political possibilities.
The Living Convention is a compendium of the most important provisions relating to the linkages between Indigenous peoples and - among other things - their territories, lands, natural resources, and knowledge systems. It sets them out in an ordered manner, grouping similar provisions under the same heading to help the reader to quickly assess the extent of international law relating to specific issues. In this way, the Living Convention aims to democratise international law by providing a straightforward resource for Indigenous peoples, local communities and their supporting organisations to better understand and use their international rights at the national and local levels, and to further advance ongoing international negotiations.
Overall, The Living Convention seeks to begin to address the injustice of the complexity and inaccessibility of international law. Simplifying and demystifying the otherwise important rights contained in international law will better position Indigenous peoples and local communities to understand and use them and ensure they are upheld and respected in practice.
The Living Convention constitutes one part of a longer-term effort to highlight the fact that the fragmented way in which laws are currently developed and implemented (i.e., separate laws for land, wildlife, traditional knowledge, etc.) further damages the integrity and resilience of social-ecological systems. In this sense, it constitutes a new reading of the legal landscape - one that may help chart a new course of law making and lawyering in the pursuit of social and environmental justice.
The Living Convention is available for download at: http://naturaljustice.org/wp-content/uploads/pdf/The-Living-Convention-second-edition.pdf
Holly and Harry are based in Sabah, Malaysia, and work for Natural Justice: Lawyers for Communities and the Environment (www.naturaljustice.org).
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