Human Rights and Natural Resources: An Appraisal

by Jeremie Gilbert

Overview

The management of natural resources is directly related to livelihoods for local communities, but is also intimately linked to broader national and regional economic development, as well as to political stability, peace and security. Natural resources and their effective management are necessary for securing the realisation of human rights. While there is some analysis regarding the emergence of specific relevant areas of human rights, such as the right to water, the right to food, or public participation, there is no systematic and comprehensive study on the potential role that human rights law can play in the management of natural resources.

This book provides an in-depth analysis of these developments and how these could contribute to a more comprehensive human rights-based approach to the management of natural resources. In doing so, the author proposes a systematic analysis of the different norms, procedures, and approaches developed under human rights law which are relevant to the management of natural resources. As such, the text offers a human rights-based approach to the development of a legal framework for natural resource management, an area which is currently dominated by investment law and treaties concerning the use and exploitation of natural resources by States and private actors.

Product Details

ISBN-13:	9780198795667
Publisher:	Oxford University Press
Publication date:	12/31/2018
Pages:	216
Product dimensions:	9.30(w) x 6.20(h) x 0.90(d)

About the Author

Jeremie Gilbert, Reader in Law, University of East London

Jeremie Gilbert is a Reader in Law at the University of East London. His main area of research is international human rights law. He is the author of Nomadic Peoples and Human Rights (Routledge, 2014) and Indigenous Peoples' Land Rights under International Law (2nd ed., Brill, 2016).

Table of Contents

List of Abbreviations xi

Table of Cases xiii

Table of Instruments xvii

Introduction 1

1 Context: Resources Conflicts, the 'Curse', and Resource Grabbing 2

2 Scope of the Book 4

3 Which Natural Resources? Terminology and Definitions 5

4 Conceptual Framework and Methodology 7

5 Structure of the Book 9

1 Sovereignty, Self-Determination, and Natural Resources: Reclaiming Peoples' Rights 12

1 Introduction 12

2 Sovereignty over Natural Resources: The State Approach 13

2.1 Permanent Sovereignty over Natural Resources: Decolonization and Economic Order 14

2.2 Non-Self-Governing Territories and Natural Resources 17

3 Self-Determination over Natural Resources: Peoples' Rights 20

3.1 The Emergence of the Right to Self-Determination over Natural Resources 20

3.2 A Compromised and Ambiguous Right 24

4 Reclaiming Sovereignty: Indigenous Peoples, Peasants, and Food Sovereignty 26

4.1 Indigenous Peoples and the Revival of Self-Determination over Natural Resources 26

4.2 Food Sovereignty, Peasants, and Natural Resources 29

5 Conclusion 31

2 Property Rights and Natural Resources: States, Communities, and Corporations 34

1 Introduction 34

2 The Human Right to Property: From Eminent Domain to Land Rights 35

2.1 Eminent Domain, Property Rights, and Natural Resources 36

2.2 Indigenous Peoples' Property Rights to Land and Natural Resources 39

3 Community Property Resources: Forests and Fishing Rights 42

3.1 Community Forest Rights 44

3.2 Community Fishing Rights 48

4 Corporate Property Rights, Natural Resources, and Local Communities 53

4.1 Corporate Property Rights, Privatization, and the Right to Water 53

4.2 Concessionary Rights, Investors, and Arbitration 57

5 Conclusion 61

3 Governance of Natural Resources and Human Rights: From Development to Benefit-Sharing 63

1 Introduction 63

2 The Right to Development and Natural Resources: From Participation to Consent 64

2.1 A Human Rights-Based Approach to Development: From Rhetoric to Participation 65

2.2 From Consultation to a Right to Free, Prior, and Informed Consent (FPIC): Indigenous Peoples and Beyond? 68

3 Development, Participation, and Benefit-Sharing 75

3.1 Fair and Equitable Benefits: From Biodiversity to Human Rights 76

3.2 Benefit-Sharing Agreements and Human Rights; States, Peoples, and Industries 81

4 Taxation, Fiscal Regimes, and Transparency 84

4.1 Maximum of Available Resources and Natural Resources 85

4.2 Transparency on Taxation over Natural Resources 87

5 Conclusion 90

4 Life and Natural Resources: Livelihood, Conflicts, and Personal Integrity 92

1 Introduction 92

2 The Right to Life and Natural Resources: The Livelihood Approach 93

2.1 Famine, Food, and Water: A Right to Human Dignity 93

2.2 Indigenous Peoples' Bight to Livelihood 97

3 Conflicts and Natural Resources: The Accountability Approach 100

3.1 War Crimes, Pillage, and Destruction of Natural Resources 101

3.2 Criminal Accountability, International Criminal Law, and Natural Resources 104

4 Natural Resources Defenders: The Physical Integrity Approach 107

4.1 Murders, Arbitrary Killings, and Enforced Disappearances: A Right to Physical Integrity 108

4.2 Violence from Non-State Actors: From Impunity to Extraterritorial Litigation 111

5 Conclusion 115

5 Cultural Rights and Natural Resources: Cultural Heritage, Traditional Knowledge, and Spirituality 118

1 Introduction 118

2 The Diversity Approach: Natural Resources as a Way of Life 119

2.1 Minorities' Way of Life: Indigenous Peoples and Cultural Survival 120

2.2 Cultural Diversity, Natural Resources, and Identity 124

3 The Cultural Heritage Approach: Traditional Knowledge and Natural Resources 129

3.1 'World Heritage Sites', Natural Resources, and Human Rights 129

3.2 Intangible Heritage, Traditional Knowledge, and Human Rights 133

4 The Spiritual Approach: Sacred Sites, Sacred Practices, and Natural Resources 138

4.1 Freedom of Religion, Sacred Natural Sites, and Spirituality 138

4.2 Sacred Practices and Indigenous Peoples' 'Cosmovision' 141

5 Conclusion 145

6 Protecting Natural Resources: Conservation, Biodiversity, Climate Change, and Human Rights 147

1 Introduction 147

2 Human Rights and the Pollution of Natural Resources 149

2.1 Pollution and the Right to a Healthy Environment; From Theory to Practice 149

2.2 Procedural Rights, Transboundary Pollution, and Corporations 154

3 Nature Conservation, Biodiversity, and Human Rights: From Wildlife to Biocultural Rights 158

3.1 From 'Fortress Conservation' to 'Stewardship Rights' 159

3.2 Biodiversity, Human Rights, and the Emergence of Biocultural Rights 163

4 Climate Change, Natural Resources, and Human Rights 167

4.1 Climate Justice, Discrimination, and Adjudication 168

4.2 Carbon Trading and the Commodification of Natural Resources 173

5 Conclusion 176

Conclusion 179

1 Human Rights and the Legalization of Natural Resources Management 179

2 What is the Content of a Human Rights-Based Approach to Natural Resources? 179

3 Specific Rights-Holders: Indigenous Peoples, Rural Women, Farmers, and Local Communities 182

4 Duty-Bearers: States, International Organizations, Financial Institutions, and Corporations 185

5 The Value of a Human Rights-Based Approach to Natural Resources: Prospects, Challenges, and Limitations 188

Selected Bibliography 191

Index 197

Editorial Reviews

"The book provides a practice-oriented and comprehensive analysis of the role of IHRL in regulating the exploration and exploitation of natural resources. ... While the book is accessible to those approaching the subject for the first time, it identifies pressing areas for further examination that will be of interest to advanced researchers. With decades of experience researching on natural resource management and indigenous peoples' rights, local community rights, and benefit sharing, Gilbert has succeeded in developing a truly interdisciplinary resource that will be essential for scholars, policymakers and practitioners in the fields of human rights, environmental studies, international law, international relations, and resource politics." — Michael Addaney, Chinese Journal of Environmental Law

From the Publisher