Protecting the rights of indigenous peoples-promoting the sustainability of the global environment?

International Community Law Review

Volumn 11, Issue 1, 2009, Pages 3-68

  Heinämäki, Leena ^a  

^a UNIVERSITY OF LAPLAND   (Finland)

Author keywords

Cultural rights of indigenous peoples; Environmental sustainability; Indigenous peoples; Traditional ecological knowledge

Indexed keywords

EID: 72449129233     PISSN: 18719740     EISSN: 18719732     Source Type: Journal    
DOI: 10.1163/187197309X401406     Document Type: Article

References (421)

1. Environmental sustainability has been defi ned in great detail but generally and in this context it means the ability of the environment and each species to function properly and maintain the optimal balance in abundance. See also e.g. the Commissioner for Environmental Sustainability, Victoria, available at: (visited 22 February 2008).
2. See for instance UN Human Rights Committee: General Comment No. 23(50), A/49/40, Vol.I (1994), Annex V (pp. 107-110);
3. CCPR/C/21/Rev.1/Add.5; available at: (visited 1 January 2008).
4. See Section 5 of this article.
5. A letter from Chief Seattle, Patriarch of the Duwamish and Squamish Indians of Puget Sound to United States President Franklin Pierce (1855)
6. cited in UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment: Final Report prepared by Mrs. Fatima Zohra Ksentini, Special Rapporteur, 1994, E/CW.4./Sub.2/1994/9, para. 74.
7. The document can be found at: (visited 10 July 2007).
8. E. Sahtouris, Earthdance: Living Systems in Evolution, Chapter 19, The Indigenous Way, at: (visited 29 May 2007).
9. A.V. Golovnev and G. Osherenko, Siberian Survival. The Nenets and Their Story. Cornell University Press, Ithaca. 1999, at 41.
10. E. Helander, Global Change - Climate Change Observations Among the Sámi, in E. Helander and T. Mustonen (eds.), Snowscapes, Dreamscapes, Snowchange Book on Community Voices of Change, Tampere Polytechnic Publications.
11. Ser. C, Study Materials 12, 2004, pp. 302-309, at 303.
12. M. Jensen and D. Mclean, SnowChange 2002 Conference, Yukon First Nation Observation of Climate Change, in E. Helander and T. Mustonen (eds.), 12, 2004, ibid., pp. 75-76, at 75.
13. M. Jensen and D. Mclean, SnowChange 2002 Conference, Yukon First Nation Observation of Cli mate Change, 12, 2004, 75-76, Ibid.
14. UN Special Rapporteur José R. Martínez Cobo, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of Discrimination against Indigenous Populations, 1986, E/CN.4/ SUB.2/1986/7/ADD.4., paras. 196-197.
15. UN Special Rapporteur, Mrs. Erica-Irene A. Daes, Sub-Commission on the Promotion and Protec tion of Human Rights, Indigenous peoples and their relationship to land, Final working paper, 2001, E/CN.4/Sub.2/2001/21, paras. 12-13. The document can be found at: (visited 10 July 2007).
16. Victoria Tauli-Corpuz, Chairperson of the Permanent Forum on Indigenous Issues, Address to the opening of sixth session of the Permanent Forum on Indigenous Issues, New York, 14 May 2007; avail able at: (visited 29 May 2007).
17. Karioca Declaration, Brazil, May 30, 1992, signed at Kari-oca, Brazil on the 30th Day of May, 1992; available at: (visited 23 May 2007).
18. Mrs. Erica-Irene A. Daes (2001), supra note 11, para. 20.
19. The Bonn Declaration at the Third International Forum of Indigenous Peoples and Local Communities on Climate Change July 14-15, 2001, Bonn, Germany, available at: (visited 23 May 2007).
20. Indigenous Peoples and Local Communities Caucus, Seventh Session of the Conference of the Parties, United Nations Framework Convention on Climate Change, Marrakech, Kingdom of Morocco, Octo ber 29 to November 9, 2001, Item 1; available at: (visited 23 May 2007).
21. 'We, the Indigenous Peoples, have historically played an active role in the conservation of eco-systems crucial to the prevention of climate change such as forests, wetlands and coastal and marine areas. Long ago, our sciences foretold of the severe impacts of Western 'development' models based on indiscriminate clear-cutting, oil exploitation, mining, carbon-emitting industries, permanent organic pollutants and the insatiable consumption of the industrialized countries. Today, these unsustainable models threaten the very life of Mother Earth and the lives of all of us who are her children.' Declaration of the fi rst interna tional forum of indigenous peoples on climate change, Lyon, France, September 4-6, 2000, Introduction, available at: (visited 23 May 2007).
22. P. Havemann and H. Whall, Commonwealth Policy Studies Unit, The Miner's Canary: Indigenous Peoples and Sustainable Development in the Commonwealth. A Commonwealth Policy Studies Unit Memorandum to Commonwealth Heads of Government attending the World Summit on Sustainable Development (WSSD), August 26-September 4, Johannesburg, South Africa, 200216-200217, available at: (visited 23 May 2007).
23. Indigenous Peoples' Political Declaration, Prep. Com. IV, Bali, Indonesia, 6 June 2002; available at: (visited 19 February 2008).
24. A.R. Emery, Integrating Indigenous Knowledge in Project Planning and Implementation, A Partnership Publication (The International Labor Organization, The World Bank, The Canadian International Development Agency, and KIVU Nature Inc.), 2000, published by The World Bank and The Canadian International Development Agency, p. 16. The document is available at: (visited 28 June 2007).
25. Other terms that are used include 'indigenous technical knowledge', traditional knowledge', 'people's science' or 'rural people's knowledge'. On defi nitions, see generally F. Berkes, Traditional ecological knowledge in perspective. Winnipeg, Natural Resource Institute, 1992;
26. M. Johnson, (ed.), Lore: capturing traditional environmental knowledge, Ottawa, Dene Cultural Institution, International Development Research Centre, 1992, at 4;
27. D. Warren, L. Michael, J. Slikkerveer, and D. Brokensha (eds.), The cultural dimension of development: Indigenous knowledge systems. London: Intermediate Technology Publications, 1995.
28. M. Gadgil, F. Berkes and C. Folke, Indigenous knowledge and biodiversity conservation. Ambio 22/2-3, 1993, 151-156, at 151.
29. M. Johnson (ed.), LORE: Capturing Traditional Environmental Knowledge. Supra note 21 at 4. See also United Nations Economic and Social Council, E/C. 19/2007/10, Permanent Forum on Indigenous Issues, sixth session, New York, 14-25 May 2007, Item 4 of the provisional agenda, Implementation of recommendations on the six mandated areas of the Forum and on the Millennium Development Goals, Report of the Secretariat on Indigenous traditional knowledge, 1. Introduction, item 2, available at: (visited 29 May 2007).
30. See also C. Rat-tray, Talhtan Traditional Ecological Knowledge in C. Rattray and T. Mustonen (eds.), Dispatches from the Cold Seas, Indigenous views on Selfgovernance, ecology and identity, Tampere Polytechnic, Finland in cooperation with Tahltan Research Institute on Biological Ecosystems (TRIBE) Indigenous Governance Program at the University of Victoria, British Columbia, Canada, 2001, pp. 138-147, at 138.
31. D.A. Posey, Ethnobiology and ethnoecology in the context of national laws and international agree ments aff ecting indigenous and local knowledge, traditional resources and intellectual property rights, in R. Ellen, P. Parkes and A. Bicker, Indigenous Environmental Knowledge and its Transformations, Critical Anthropological Perspectives, Gordon and Bread Publishing Group, Routledge, London and New York, 2000, Reprinted 2003, pp. 35-54, at 36.
32. R. Ellen, P. Parkes and A. Bicker, Indigenous Environmental Knowledge and its Transformations, Critical Anthropological Perspectives, Ibid., 2003, p. 35.
33. See ACIA, Arctic Climate Impact Assessment (Cambridge University Press, 2005), particularly chapter 3: Changing Arctic: Indigenous Perspectives, pp. 61-97, at 62. This document is available at: (visited 30 March 2007).
34. Arctic Climate Impact Assessment, 2005, 61-97, Ibid.
35. Arctic Climate Impact Assessment, 2005, 61-97, Ibid.
36. Ad Hoc Open-Ended Inter-Sessional Working Group on Article 8 (j) and Related Provisions of the Convention on Biological Diversity, Biological Diversity in the Arctic, Final Report: September 2005, Composite report on status and trends regarding the knowledge, innovations and practices of Indigenous and local communities, Region: Arctic, Consultant: Elina Helander-Renvall, UNEP/CBD/WG8J/4/ INF/3, 21 December 2005.
37. Ibid., p. 6.
38. E. Helander, Sámi knowledge - subjective opinion or science? in Diehtogiisá. Newsletter, Nordic Saami Institute. English edition. 1/ 1992, pp. 3-4.
39. D.A. Posey (ed.), Cultural and Spiritual Values of Biodiversity. United Nations Environment Programme, 1999, p. 2.
40. R. Ridington, Knowledge, Power, and Individual in Subarctic Societies, American Anthropologist 90, 1988, 98-110, at 99.
41. See for instance generally E. Helander, and T. Mustonen (eds.) (2004), supra note 7.
42. See generally J. Pentikäinen, Saamelaiset. Pohjoisen Kansan Mytologia (The Sámi people, Mythology of a Northern People), SKS. Helsinki, 1995;
43. T. Ingold, The Perception of the Environment. Essays in Livelihood, Dwelling and Skill. Routledge, London, 2000.
44. K. Swiderska (IIED) and A. Argumendo, (Andes/COE), Towards a Holistic Approach to Indigenous Knowledge Protection: UN Activities, 'Collective Bio-Cultural Heritage' and the UNPFII, Fifth Session of the UN Permanent Forum on Indigenous Issues, 15-26 May 2006, New York., pp. 1-2; available at: (visited 24 May 2007).
45. Ibid., p. 2.
46. See Akwé: Kon Guidelines, Secretariat of the Convention on Biological Diversity, 2004; available at: (visited 24 May 2007).
47. Ibid., pp. 1-2.
48. A. Kalland, Indigenous knowledge: prospects and limitations. In; R. Ellen, P. Parkes and A. Bicker, (eds.), (2000), pp. 319-335, at 319.
49. P. Burgess, Traditional Knowledge. A report prepared for the Arctic Council Indigenous Peoples' Secretariat, Copenhagen 1999, p. 5.
50. See J. de Rosnay, Biodiversity in the twenty-fi rst century. In F. di Castri and T. Younes (eds.), Biodi versity, Science and Development. Cab International. Wallingford, 1996, p. 596.
51. Helander-Renvall, Biological Diversity in the Arctic, Final Report (2005), supra note 9, p. 8.
52. F. Berkes, and C. Folge (eds.), Linking Social and Ecological Systems: Management Practices and Social Mechanisms for Building Resilience. Cambridge University Press: Cambridge 1998, p. 99.
53. A. Kalland, (2000), supra note 40, at 320.
54. See for instance R.F. Ellen, What Black Elk left unsaid: on the illusory images of green primitivism. Anthropoloy Today 2/6, 1986, 8-12, at 11;
55. R. Keesing, Cultural anthropology: A contemporary perspective. New York: Holt, Rinehart and Winston, 1976, p. 116;
56. B. Maragia, The Indigenous Sustainability Paradox and the Quest for Sustainability in Post-Colonial Societies: Is Indigenous Knowledge all that is Needed?, 18 Georgetown International Environmental Law Review 197, Winter 2006, 197-246, particularly at 219-227;
57. F. Stammler, Reindeer Nomads Meet the Market, Culture, Property and Globalisation at the 'End of the Land', Max Planck Institute for Social Anthropology, Halle Studies in the Anthropology of Eurasia, 6, 2005, 241-252.
58. Environmental organizations have played an active role for instance in the creation of the World Charter for Nature that recognizes the intrinsic value of nature (World Charter for Nature, A/Res/37/7, United Nations General Assembly, 48th Plenary Meeting, 28 October 1982; available at: (visited 18 February 2008). Also Earth Charter, produced as an initiative by a big group of non-governmental organizations and individuals and completed in 2000, recognizes the inherent value of the Earth; the document is available at: (visited 18 February 2008).
59. P.E. Taylor, From Environmental to Ecological Human Rights: A New Dynamic in International Law?, 10 Georgetown International Environmental Law Review, 1998, 309-397, at 372.
60. E. Sahtouris, Earthdance: Living Systems in Evolution, Chapter 19, The Indigenous Way. Available at: (visited 29 May 2007).
61. Special Repporteur Ksentini, Preliminary Report, Human Rights and the Environment, E/CN.4/ Sub.2/1991/8 (1991), Para. 23.
62. Sixth Session of the UN Permanent Forum on Indigenous Issues, United Nations, Headquarters, New York, available at: (visited 18.1.2008).
63. E-I. A. Daes, (2001), supra note 11.
64. C. Metcalf, Indigenous Rights and the Environment: Evolving International Law, 35 Ottawa L. Rev. 101, 2003-2004, 101-140, at 107.
65. Gro Bruntland, Our Common Future, World Commission on Environment and Development, Oxford, Oxford University Press, 1987, pp. 114-115.
66. Rio Declaration on the Environment and Development, United Nations Conference on Environment and Development, Annex, Resolution 1, UN Doc. A/Conf.151/26/Rev.1 (vol. 1) (1993) at 3, I.L.M 876 [Rio Declaration cited as UN Doc. A/Conf.151/26/Rev.1 (vol. 1)].
67. C. Metcalf, (2003-2004), supra note 53, at 108.
68. Agenda 21, United Nations Conference on Environment and Development, Annex, Resolution 1, UN Doc. A/conf.151/26/Rev.1 (vol. 1) (1993) at 9 [Agenda 21].
69. 26.3.a) ii.
70. 26.3.a)iv.
71. 26.2. states: 'Some of the goals inherent in the objectives and activities of this programme area are already contained in such international legal instruments as the ILO Indigenous and Tribal Peoples Con vention (No. 169) and are being incorporated into the draft universal declaration on indigenous rights.'
72. 26.1..
73. 26.3.a)iii.
74. C. Metcalf, (2003-2004), supra note 53, at 109.
75. Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Manage ment, Conservation and Sustainable Development of All Types of Forests, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, A/CONF. 151/26 (Vol. III) (1992), Annex III, Para. 5 (a).
76. Ibid. It should be noted that the follow-up to the Rio Conference, the World Summit on Sustainable Development, recognized the important role of indigenous peoples in sustainable development. Para graph 25 states: 'We reaffi rm the vital role of the indigenous peoples in sustainable development.' The two-fold idea of the protection of the cultural integrity of indigenous peoples is expressed explicitly in the document prepared by representatives of indigenous peoples, under the auspices of the UN Commission on Sustainable Development, on the commitments and priorities that the WSSD should pursue. See the Commission on Sustainable Development acting as the preparatory committee for the World Summit on Sustainable Development, Note by the Secretary-General, Appendum: Dialogue paper by indigenous peoples, A/CONF.199/PC/ . . . ./Add.3 (2002), Para. 7. Para. 17, which contains a provision concerning water rights, may be taken as an example; it states: '[States should] [r]ecognize the spiritual relationships and inherent rights of indigenous peoples to water and to promote legal recognition of indigenous structures and their important role in integrated land, watershed and river basin management, and decision-making at all levels on water policy, programmes and projects'.
77. The Convention on Biological Diversity, adopted 5 June 1992, 1760 UNTS 79; 31 ILM 818 (1992).
78. Article 8(j) of the Bio-diversity Convention attempts to address indigenous intellectual property rights by requiring the states parties to respect, preserve and maintain the knowledge, innovations and practices of indigenous peoples. This attempt seems rather modest, however, because of the clause 'subject to national legislation', given that most states' legislation precludes the recognition of indigenous intellectual property rights. Furthermore, where the sharing of benefi ts derived from indigenous knowledge and culture is concerned, the article talks about 'encouraging equitable sharing'.
79. See Fergus MacKay, From Concept to Design: Creating an International Environmental Ombudsperson, The Rights of Indigenous Peoples in International Law (A project of the Earth Council, San José, Costa Rica, Project Director: The Nautilus Institute for Security and Sustainable Development, Berkley, California, March 1998), p. 23. The U.N. Working Group on Biological Diversity and Indigenous Knowledge bases its work on Article 8(j). The Working Group promotes public awareness of the importance of traditional knowledge and biological diversity to global sustainability, the role of indigenous peoples and local communities in the maintenance of biological diversity, and the international and national agreements for their protection and strengthening. (For information about the Convention on Biological Diversity and Article 8 (j); available at: (visited 20 February 2008).
80. R.L. Barsh, Indigenous Peoples. In: D. Bodansky, J. Brunnée and E. Hey (eds.), The Oxford Handbook of International Environmental Law, Oxford University Press, Oxford, 2006, pp. 830-852, at 848.
81. After preparations lasting more than a decade, the UN Declaration on the Rights of Indigenous Peo ples was adopted by the UN General Assembly on 7 September 2007. UN Declaration on the Rights of Indigenous Peoples, 7 September 2007, Sixty-fi rst Session, A/61/L.67; available at: (visited 5 January 2008).
82. Intellectual property rights are protected in clear terms in Articles 11 and 31, of which the fi rst states: '1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress through eff ective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.' Furthermore, Article 31 states: '1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and fl ora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take eff ective measures to recognize and protect the exercise of these rights.'
83. B.J. Richardson, Indigenous Peoples, International Law and Sustainability, RECIEL 10(1), 2001, 1-12, at 9.
84. B.J. Richardson, RECIEL 10(1), 2001, 1-12, Ibid.
85. B.J. Richardson, RECIEL 10(1), 2001, 1-12, Ibid. Intellectual property rights (IPRs), such as copyright and patents, are a primary means by which rights over knowledge are allocated. An IPR bestows on its holder the right to exclude others from com mercial exploitation during the term of the right, although it can be transferred to another by sale or gift. Currently, there are no international legal instruments or standards that adequately recognize indigenous peoples' rights to their knowledge, innovations and practices. There are, however, many attempts to apply existing general market-based IPR standards to indigenous knowledge as well as to create new, more suit able ones.
86. See generally Downes, D.R., How Intellectual Property Could Be a Tool to Protect Traditional Knowledge, 25 Columbia Journal of Environmental Law (2000): 253-281.
87. Article 8(j). See B.J. Richardson (2001), supra note 71, at 9.
88. Conference of the Parties to the Convention on Biological Diversity, 'Intellectual Property Rights', UNEP/CBD/COP/3, 38, p. 99.
89. See R.L. Barsh, (2006), supra note 68, at 848.
90. See C. Metcalf, (2003-2004), supra note 53, at 10.
91. See also B.J. Richardson, (2001), supra note 71, at 11.
92. R.L. Barsh, (2006), supra note 71, at 848. It should be mentioned that the Vienna Declaration (adopted in World Conference on Human Rights, Vienna, 14-25 June 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993)), acknowledges the two-fold idea of protecting cultural integrity. It recognizes 'the inherent dignity and the unique contribution of indigenous people to the development and plurality of society and strongly reaffi rms the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development.' The Declaration further states: 'States should ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them.' Finally the Declaration states that 'states should, in accordance with international law, take concrete positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination, and recog nize the value and diversity of their distinct identities, cultures and social organization.' (Part I, Para. 20).
93. According to the Declaration, 'the Arctic Council is established as a high level forum to provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.' (Para. 1).
94. The Declaration created the new category of permanent participant. Paragraph 2 states: 'The Inuit Circumpolar Conference, the Saami Council and the Association of Indigenous Minorities in the Far North, Siberia, the Far East of the Russian Federation are Permanent Participants in the Arctic Council. Permanent participation equally is open to other Arctic organizations of indigenous peoples with major ity Arctic indigenous constituency.' More specifi c rules are laid out that defi ne the selection criteria for the indigenous peoples' organisation referred to in paragraph 2. In order to be eligible to become a permanent participant, an organization must represent: a. single indigenous people resident in more than one Arctic State; or b. more than one Arctic indigenous people resident in a single Arctic State. In addition, according to the same paragraph, the determination that such an organisation has met this criterion is to be made by a decision of the Council. At any given time, the number of permanent participants should be fewer than the number of members in the Council, that is, eight. Currently, there are six framework organisations of Arctic indigenous peoples that have the status of permanent participant. See the official webpage of the Arctic Council at: (visited 16 October 2007).
95. For indigenous peoples, it was very important that the category of permanent participant was distinguished from that of observer, defi ned in paragraph 3 of the Declaration, and that it was created 'to provide for active participation and full consultation with the Arctic indigenous representatives within the Arctic Council.' (Para. 2).
96. See T. Koivurova and L. Heinämäki, The participation of indigenous peoples in international norm- making in the Arctic, 42 Polar Record (2) 2006, 101-109, at 104.
97. Inter-governmental environmental co-operation between Arctic states was, in fact, started years before the establishment of the Arctic Council. In 1991 Norway, Denmark, Iceland, Sweden, Finland, Russia, Canada and the United States of America signed the Arctic Environmental Protection Strategy (AEPS). Importantly, indigenous peoples' organizations were involved in this cooperation from the very begin ning. In the fi rst consultative meeting of the eight Arctic states in Rovaniemi in 1989, it was considered that 'indigenous peoples should be involved in future work, since they bear the burdens of environmental degradation directly.' See Consultative Meeting on the Protection of the Arctic Environment. Rovaniemi, 20-26 September 1989. Report and Annex I:1 (Helsinki: 1989), p. 6.
98. In the preparatory meeting in Yel-lowknife the following year, the Inuit Circumpolar Council (then Conference) (ICC) stated the importance of direct participation of indigenous peoples in Arctic environmental co-operation 'so that indigenous perspectives, values and practices can be fully accommodated.' M. Simon, 'Proposed Objectives for an Arctic Sustainable and Equitable Development Strategy', in Protecting the Arctic Environment. Report on the Yellowknife Preparatory Meeting. Yellowknife NWT, Canada, April 18-23, 1990. Annex II: 15, Ottawa, 1990, p. 183.
99. See M. Tennberg, Indigenous Peoples' Involvement in the Arctic Council, Northern Notes, IV: 21-32, December 1996. Indigenous peoples' traditional knowledge has also been extensively discussed and col lected within the individual Arctic states.
100. See, for instance, one Canadian example available at (visited 17 October 2007).
101. See (visited 17 October 2007).
102. ACIA, Impacts of a Warming Arctic: Arctic Climate Impact Assessment, Cambridge University Press, 2004; available at: (visited 1 October 2007). Chapter 3, Changing the Arctic: Indigenous Perspectives, pp. 61-98.
103. International Labour Organisation Convention (No.169) concerning Indigenous and Tribal Peoples in Independent Countries, concluded on 27 June 1989, entered into force on 5 September 1991, reprinted in 28 ILM 1382 (1989).
104. ILO Convention No.169 replaces the earlier Convention No. 107 (26 June 1957, 328 UNTS 247), which remains in force until the country has ratifi ed the later convention.
105. Article 4.1: 'Special measures shall be adopted as appropriate for safeguarding the persons, institu tions, property, labour, cultures and environment of the peoples concerned.'
106. Article 7.3.
107. Article 7.4.
108. UN Declaration on the Rights of Indigenous Peoples, 7 September 2007, Sixty-fi rst Session, A/61/ L.67; available at: (visited 5 January 2008).
109. -10th preamble.
110. Proposed American Declaration on the Rights of Indigenous Peoples, Approved by the Inter-American Commission on Human Rights on February 26, 1997, at its 95th regular session. OEA/Ser/L/V/.II.95, Doc. 6.
111. Article XIII, para. 1.
112. Article XIII, para. 2.
113. See UN Human Rights Committee. General Comment No. 23(50), A/49/40, Vol.I (1994), Annex V (pp. 107-110), para. 7; CCPR/C/21/Rev.1/Add.5; available at: (visited 1 January 2008).
114. Ibid. Emphasis added. The UN Committee on Economic, Social and Cultural Rights has also paid particular attention to the cultural and environmental integrity of indigenous peoples on many occasions. See, for instance, Finland's fourth periodic report 09/12/99, E/C.12/4/Add.1; available at: (visited 18 January 2007).
115. See also Concluding Observations of the Committee on Economic, Social and Cultural Rights: Panama. 24/09/2001. UN Doc. E/C.12/1/Add.64, at para. 12; available at: (visited 22 January 2007).
116. International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No.16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, adopted 16 December 1966, entered into force January 3, 1976. Status of ratifi cation: 155, article 15(1).
117. The Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No.49) at 167, U.N. Doc. A/44/49 (1989), adopted 20 November 1989, entered into force September 2, 1990, Article 30.
118. International Convention on the Elimination of All Forms of Racial Discrimination., 660 U.N.T.S. 195, adopted 7 March 1966, entered into force January 4, 1969. Status of ratifi cation: 193, articles 1(1), 1(4), 2(2), 5 e VI.
119. UN Human Rights Committee: see Lubicon Lake Band v. Canada, Communication No. 167/1984: Canada.10/05/90, CCPR/C/38/D/167/1984; available at: (visited 21 January 2007)
120. Hopu and Bessert v. France (Communication No. 549/1993), views of the Human Rights Committee, 29 July 1997, UN Doc. CCPR/C/60/D/549/1993; available at: (visited 16 March 2007).
121. Inter-American Court of Human Rights: see The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Inter-Am. Ct. HR., (Ser.C), No.79 (2001); available at: (visited 4 January 2008)
122. Inter American Commission on Human Rights: see Case of Yanomami Indians, Case 7615 (Brazil)
123. Inter-Am. C.H.R., OEA/Ser.L/V/II.66 doc. 10 rev. 1 (1985); available at www.cidh.org/annualrep/84.85eng/Bra-zil7615.htm>(visited 15 March 2007), Maya Indigenous Communities of the Tolero Distric (Belize Maya), Case 12.053, Report No. 40/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004); available at: (visited 22 January 2007).
124. The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, (ibid.)
125. Ibid., para. 149. The Court expressed in very clear terms that the right to property must be read and understood in the context of indigenous peoples' specifi c culture and lifestyle, to which they have a right. It stated: 'Indigenous groups, by the fact of their very existence, have a right to live freely in their own territory; the close ties of indigenous peoples with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.'(Ibid.).
126. Alaska (USA), Canada, Greenland (Denmark) and Russia.
127. These include their rights to the benefi ts of culture, property, the preservation of health, life, physical integrity, security, and a means of subsistence, and to residence, movement, and inviolability of the home. American Declaration of the Rights and Duties of Man ('American Declaration'), Organization of Amer ican States (O.A.S.), adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992).
128. Inuit Petition to the Inter-American Commission on Human Rights seeking relief from violations resulting from global warming caused by the acts and omissions of the United States, 7 December 2005, p. 5. The document is available at: (visited 29 March 2007).
129. There is no generally accepted defi nition of this widely used concept. However, generally and also in this context 'environmental integrity' refers to the sustenance of important biophysical processes which support life and which must be allowed to continue without signifi cant change in order to maintain the balance and health of life support systems of nature. See generally L. Westra, Environmental Justice & The Rights of Indigenous Peoples, International & Domestic Legal Perspectives, Earthscan, London, Sterling, VA, 2008, pp. 3-22.
130. Press Release: Climate Change in the Arctic: Human Rights of Inuit Interconnected with the World, December 10, 2003, Milan, Italy; available at: (visited 5 January 2008).
131. See, for instance, a report by Environmental Defense, Friends of the Earth, International Rivers Network, Gambling with People's Lives, What the World Bank's New "High-Risk/High Reward" Strat egy Means for the Poor and the Environment, September 2003, available at: (visited 15 October 2007).
132. L. Hammer, Indigenous Peoples as a Catalyst for Applying the Human Right to Water, 10 Interna tional Journal on Minority and Group Rights, 2003, 131-161, at 152.
133. See B. Kingsbury, Operational Policies of International Institutions as Part of the Law Making Proc ess: The World Bank and Indigenous Peoples, in G. Goodwin-Gil & S. Talmon, (eds.), The Reality of International Law - Essays in Honour of Ian Brownlie, Clarendon Press, Oxford, 1999, pp. 323-343.
134. See also A Report by Environmental Defense, Friends of the Earth, International Rivers Network, supra note 109, at 1.
135. See examples of the World Bank's funded projects at: (visited 15 October 2007).
136. World Bank Operational Manual, Operational Directive 4.20 on Indigenous Peoples, para. 3 (Mar. 2001) (defi ning 'indigenous peoples' as those people whose minority status puts them at signifi cant risk in the development process). The World Bank, in defi ning indigenous peoples, does not emphasize his torical continuity and colonial aspects but instead views indigenous people as being 'groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvan- taged.'
137. See The World Bank Operational Manual: Operational Directive Indigenous Peoples, IWGIA Newsletter, No.3, Nov/Dec 1991, p. 19.
138. United Nations Economic and Social Council, E/CN,19/2002/2/Add.12, 19 April 2002, Permanent Forum on Indigenous Issues, fi rst session, New York, 13-24 May 2002, Item 6 of the provisional agenda, review of activities of the
139. S. Davies, S. Salman & E. Bermudez (2001), Approach Paper on Revision of O.D. 4.20 on Indige nous Peoples, pp. 2-3. The document can be found at: (visited 21 June 2007).
140. See O.P. 4.10., para. 16, at: (visited 21 June 2007).
141. L. Hammer, (2003), supra note 110, at 153.
142. OD 4.20 on Indigenous Peoples; available at: (visited 21 June 2007).
143. Ibid., para. 6.
144. OP/BP 4.10 (Operational Policy and Bank Procedures) on Indigenous Peoples can be found at: (visited 15 January 2007). It should be noted that Operational Policy and Bank Procedures together have replaced the earlier OP 4.20.
145. The World Bank's website available at: (visited 15 January 2007). According to the World Bank, the OP/BP 4.10 strengthens the mandatory provisions in comparison to the OD 4.20 by '1. Providing clearer provisions for early and meaningful consultation and informed participation of aff ected groups. The borrower and the Bank must take into account the results of consultations when deciding whether to proceed with project processing, 2. Mandating mechanisms not only to avoid adverse impacts, but also to tailor benefi ts to indigenous peoples, 3. Adding new mandatory requirements regarding the commer cial use of natural resources (including forest, mineral and hydro-carbon resources) on lands owned, or customarily used, by indigenous groups; and 4. Adding new mandatory requirements regarding the com mercial use of cultural resources (including indigenous knowledge).'
146. See United Nations Economic and Social Council, E/CN,19/2002/2/Add.12, supra note 113, para. 13.
147. See footnote 4 of the OP 4.10. Bank Procedures BP 4.10 clarifi es what is meant by 'free, prior, and informed consultation'. 'It is consultation that occurs freely and voluntarily, without any external manip ulation, interference, or coercion, for which the parties consulted have prior access to information on the intent and scope of the proposed project in a culturally appropriate manner, form, and language.' Fur thermore, consultation approaches must recognize existing Indigenous Peoples Organizations (IPO's). Finally, 'the consultation process starts early, and there is a need for adequate lead time to fully understand and incorporate concerns and recommendations of indigenous peoples into the project design.' BP 4.10, para. 2.
148. OP 4.10, para. 10(c). Free, prior, and informed consultation is required also in projects involving the commercial development of natural resources (such as minerals, hydrocarbon resources, forests, water, or hunting/fi shing grounds) on lands or territories that Indigenous Peoples traditionally owned, or custom arily used or occupied. (Para. 18.) Consultation should be carried out also in projects involving the com mercial development of indigenous peoples' cultural resources and knowledge (for example, pharmacological or artistic). (Para. 19.) The Bank may, at a member country's request, support the coun try in its development planning and poverty reduction strategies by providing fi nancial assistance for a variety of initiatives designed for example to protecting indigenous knowledge, including by the strength ening of intellectual property rights. (Para. 22.)
149. OP 4.10 defi nes 'customary rights' to lands and resources as referring to patterns of long-standing community land and resource usage in accordance with indigenous peoples' customary laws, values, customs, and traditions, including seasonal or cyclical use, rather than formal legal title to land and resources issued by the State. (Para. 16(a), footnote 17.)
150. Para. 16. In addition to the Operational Policy on Indigenous Peoples, Operational Policy 4.12 on Involuntary Resettlement is important to indigenous peoples. In the case of physical relocation of indig enous peoples, besides a consultation requirement, the borrower is required to prepare a resettlement plan that is compatible with the indigenous peoples' cultural preferences and includes a land-based resettle ment strategy. Physical relocation should happen only in exceptional circumstances, when it is not feasi ble to avoid relocation and when possible, the resettlement plan should allow the aff ected indigenous peoples to return to the lands and territories they traditionally owned, or customarily used or occupied, if the reasons for their relocation cease to exist. See para. 20 of OP 4.10. OP 4.12 is available at: (visited 15 January 2007). Furthermore, OP 4.10 should be read together with other relevant Bank policies, including Environmental Assessment (OP 4.01), Natural Habitats (OP 4.04), Best Management (OP 4.09), Physical Cultural Resources (OP 4.11), Forests (OP 4.36) and Safety of Dams (OP 4.37) See OP 4.10, footnote 1.
151. L. Hammer, (2003), supra note 110, at 154.
152. In 1993, the Board of Executive Directors passed a resolution authorizing the creation of the Inspection Panel, which came into existence in 1994. World Bank, IBRD Resolution No. 93-10/IDA Resolution No. 93-6 (1993); available at: (visited 12 January 2007). As the result of a broad local and international campaign against the Sardar Sarovar dam on the Narmada river in India, the Bank commissioned an independent review of its role in the project. This review became known as the Morse Commission, which published its fi ndings in 1992. The Morse Commission report documented clear violations of Bank policies and the devastating human and environmental consequences of those policy violations. In practice, the social and environmental policies that had been developed during the late 1980s and early 1990s were in many cases ignored by the Bank. Prior to the creation of the Inspection Panel, people aff ected by projects had no real avenue of redress and no way to make the Bank accountable for these policy violations. This lack of accountability was strongly highlighted in the Morse Commission's report. See D.L. Clark, A Citizen's Guide to the World Bank Inspection Panel, Center for International Environ mental Law, (1999); available at: (visited 16 January 2007). Similar mechanisms have also been established by the Inter-American and Asian Development Banks.
153. For information about the Inspection Panel, see (visited 1.2.2007).
154. See also Clark, D.L. (1999), ibid.
155. A request can be filed by any two or more adversely aff ected people living in the project area, an appointed local representative acting as agent for the aff ected people, or, in exceptional circumstances, a non-local representative acting as agent for the aff ected people. In special cases, an Executive Director of the World Bank may fi le the request. See World Bank Inspection Panel, Operating Procedures, para. 4 (1994); available at: http://web.worldbank.org/WBSITE/EXTERNAL/EXTINSPECTIONPANEL/0,contentMDK: 20175161menuPK:64129254pagePK:64129751piPK:64128378theSitePK:3807 94,00.html> (visited 2 February 2007).
156. See Operating Procedures, Introduction. The Panel is a last-resort forum and local people must fi rst exhaust other remedies before fi ling a claim. Management is given an opportunity to respond in writing to allegations made in the claim, and the Panel evaluates the merits of the case. See section IV Manage ment's Respond.
157. The Board of Executive Directors must approve the Panel recommendation for an investigation before the Panel can proceed. According to a recent agreement, the Board should approve the Panel's recommendation unless it questions specifi c technical eligibility criteria. See Conclusions of the Board's Second Review of the Inspection Panel; available at: http://www.worldbank.org/html/extdr/ipwg/secondreview.htm See D.L. Clark, (1999), supra note 126, at 9.
158. Operating Procedures, X Board Decision and Public Release. See also D.L. Clark, (1999), supra note 126, at 9.
159. See D.L. Clark, The World Bank and Human Rights: The Need for Greater Accountability, 15 Har vard Human Rights Journal, Spring, 2002, 205-223, at 218-219.
160. See also generally G. Alfredsson, & R. Ring, (eds.), The Inspection Panel of the World Bank. A Diff erent Complaints Procedure. Leiden, Marti-nus Nijhoff , 2000.
161. Arun III Hydroelectric Project Request No R Q 94/1, Nepal. See the webpage of the Inspection Panel: Requests for Inspection, available at: http://web.worldbank.org/WBSITE/EXTERNAL/EXTINSPECTION PANEL/0,contentMDK: 20232532pagePK:64129751piPK:64128378theSitePK:380794,00.html>(visited 16 January 2007).
162. D.L. Clark, (1999), supra note 126, at15.
163. Yacyretá Hydroelectric Project Request No RQ 96/2 Argentina/Paragyay; available at: http://web.worldbank.org/WBSITE/EXTERNAL/ EXTINSPECTIONPANEL/0,contentMDK:20230192pagePK:64129751piPK:64128378theSitePK: 380794,00.html> (visited 16 January 2007).
164. See Additional Request for Inspection, p. 1. at http://siteresources. worldbank.org/EXTINSPEC-TIONPANEL/Resources/AdditionalRequestforInspection. pdf> (visited 16 January 2007). The claimant was an NGO called Sobrevivencia, dedicated to protecting the environment and the quality of life of indigenous, peasant and marginalized urban communities.
165. The Inspection Panel Office Memorandum, Panel Review and Assessment, p. 56, para. 248; available at: (visited 15 January 2007).
166. Panel Review Assessment, pp. 56-57, para. 249.
167. See F. MacKay, (2002), Universal Rights or a Universe Unto Itself? Indigenous Peoples' Human Rights and the World Bank's Draft Operational Policy on Indigenous Peoples, 17 American University International Law Review (2002) 527-624 generally and particularly at p. 580.
168. It should be noted that the World Bank has no formal, written policy on human rights. OP 4.20 on Indigenous Peoples remains the only operational policy that explicitly mentions human rights. However, the World Bank has clearly acknowledged its role in the promotion and protection of human rights. See, for instance, Development and Human Rights: The Role of the World Bank, the International Bank for Reconstruction/ the World Bank 1998, Washington, D.C. The document is available at: http://www.worldbank.org/html/extdr/rights/hrtext. pdf> (visited 29 May 2007).
169. See C.F. Amerasighe, Principles of the Institutional Law of International Organizations, Cambridge, Cambridge University Press, 1996, p. 229. Due to the fact that the World Bank has no formal, written policy on human rights. Consequently, attitudes toward human rights must be deduced from the state ments of Bank offi cials, its publications, and practices. From these one can see that the Bank has made progress from rejection of human rights in the 1960s to cautious engagement in a few, defi ned areas. However, this engagement is still qualifi ed by an arbitrary distinction between rights of a political nature and rights related to economic or social well being.
170. See MacKay, F. (2002)
171. supra note 139, at 539. In the words of MacKay: '[A]part from contradicting the accepted position that all human rights are indivisible and interdependent, a position accepted by the Bank itself, this classifi catory scheme is justly characterized as ambiguous, ad hoc, arbitrary, and at times self-serving insofar as it appears that the Bank readily justifi es reinterpreting its mandate to cover areas that it wishes to operate, while arguing that it is prohibited by its Articles from those areas it wishes to avoid.'
172. See F. MacKay, (2002)
173. ibid., p. 548. MacKay also points out that, especially in the case of indigenous peoples, economic, social and cultural rights are not easily separated from political rights. These rights are often fundamentally related to and intertwined with ownership and control of land, which is widely accepted as the basis of indigenous political, social, spiritual and cultural organization.
174. F. MacKay, (2002), Ibid., p. 556. The World Bank diff erentiates between human rights that are considered civil and political rights and those that are considered economic, social, and cultural rights. The Bank has described its approach as follows: 'Except in situations where the violation of human rights has created conditions hostile to eff ective implementation of projects or has other adverse economic consequences, or where there are international obligations relevant to the Bank, such as those mandated by binding decisions of the U.N. Security Council, the World Bank does not take into account the political dimensions of human rights in its lending decisions. [. . .] Consistent with the Articles [of Agreement], the focus of the Bank's eff orts in the area of human rights is on those rights that are economic and social in nature.' World Bank, Governance: the World Bank's Experience 53 (1994).
175. The relevant section of the Articles of Agreement reads: 'The Bank and its offi cers shall not interfere in the political aff airs of any member; nor shall they be infl uenced in their decisions by the political character of the member or members concerned. Only economic considerations shall be relevant to their decisions, and these considerations shall be weighed impartially in order to achieve the purposes stated in Article 1.' World Bank Articles of Agreement, art. IV, sec. 10 (as amended Feb. 16, 1989); available at: http://www.worldbank. org/html/extdr/backrd/ibrd/art4.html#I11> (visited 22 June 2007).
176. C.F. Amerasighe, (1996), supra note 140, at 240-247.
177. See S.I. Skogly, The Human Rights Obligations of the World Bank and International Monetary Fund, Cavendish Publishing Ltd., 2001, pp. 43-62.
178. See G. Handl, The Legal Mandate of Multilateral Development Banks as Agents for Change Toward Sustainable Development, 92 American Journal of International Law 642, 1998, 624-665, at 662.
179. The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, supra note 102.
180. S.J. Anaya and R.A. Williams, The Protection of Indigenous Peoples' Rights Over Lands and Natural Resources Under the Inter-American Human Rights System, 14 Harv. Hum. Rts. J., 2001, 33-86, at 38.
181. Along with many other international instruments, two major human rights conventions recognize the right to culture. The International Convention on Civil and Political Rights (CCPR) (art. 27), which has been ratifi ed by most of the global community. G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No.) at 52, U.N. Doc. A/6316 (1966), 999 United Nations Treaty Series 171, adopted 16 December 1966, entered into force March 23, 1976. Status of ratifi cation: 153; International Covenant on Eco nomic, Social and Cultural Rights (CESCR) (art. 15.1.), res. 2200A (XXI), 21 U.N. GAOR Supp. (No.) at 49, U.N. Doc. A/6316 (1966), 993 United Nations Treaty Series 3, adopted 16 December 1966, entered into force January 3, 1976. Status of ratification: 155.
182. See supra note 102.
183. Human Rights Committee, General Comment No. 23(50) concerning ethnic, religious and linguis tic minorities, 6 April 1994, CCPR/C/21/Rev.1/Add.5 (1994) para. 7, I. Länsman et al. v. Finland, Com munication No. 511/1992, views of 26 October 1994, paras. 9.5 and 9.6; available at: http://www.unhchr.ch/tbs/ doc.nsf/(Symbol)/7e86ee6323192d2f802566e30034e775?Opendocument> (visited 21 January 2007).
184. Maya Indigenous Communities of the Tolero Distric (Belize Maya), Case 12.053, Report No. 40/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004), para. 194, emphasis added; avail able at: http://www1.umn.edu/ humanrts/cases/40-04.html> (visited 22 January 2007).
185. Organization of American States.
186. American Declaration of the Rights and Duties of Man ('American Declaration'), Organization of American States (O.A.S.), adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser. L.V/II.82 doc.6 rev.1 at 17 (1992).
187. American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, adopted 22 November 1969, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992).
188. See also The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 102.
189. As mentioned earlier, ILO Convention No.169 replaces the earlier Convention No. 107 (26 June 1957, 328 UNTS 247), which is still in force until the country ratifi es the later convention.
190. See articles 6 and 7.
191. OP 4.10, para. 2.
192. B.J. Richardson, (2001), supra note 71, at 3-4.
193. Ibid..
194. The Convention for the Regulation of Whaling was signed at Geneva, 24 September 1931, entered into force, 16 January 1935, L.N.T.S. CLU. No. 3586; available at: http://www.wdcs.org/dan/ publishing.nsf/allweb/ 0AF25C30FC2DD768802569EC004B79D5>(visited 1 July 2007).
195. L. Watters, and C. Dugger, The Hunt for Gray Whales: The Dilemma of Native American Treaty Rights and the International Moratorium on Whaling, 22 Columbia Journal of Environmental Law (1997): 319-352, at 326.
196. The Convention for the Regulation of Whaling, Article 3.
197. International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 72.
198. J. Paul, Cultural Resistance to Global Governance, 22 Michigan Journal of International Law 1, 2000, 1-84, at 58.
199. Para. 13 of the Schedule, at: http://www.iwcoffice..org/commission/ schedule.htm> (visited 30 May 2007).
200. See A. Gillespie, Aboriginal Subsistence Whaling: A Critique of the Inter-relationship between Inter national Law and the International Whaling Commission, 12 Colorado Journal of International Environ mental Law and Policy, 2001, 77-139, at 80.
201. See L.Watters and C. Dugger, (1997), supra note 160, at 327.
202. These measures, among other things, provide for the complete protection of certain species; designate specifi ed areas as whale sanctuaries; set limits on the numbers and size of whales which may be taken; prescribe open and closed seasons and areas for whaling; and prohibit the capture of suckling calves and female whales accompanied by calves. The compilation of catch reports and other statistical and biological records is also required. In addition, the Commission encourages, co-ordinates and funds whale research, publishes the results of Scientific research and promotes studies in related matters such as the humaneness of the killing operations.
203. See IWC home page at: http://www.iwcoffice..org/commission/iwcmain. htm> (visited 6 September 2007). The IWC is composed of one representative from each member nation. The representatives are entitled to participate in IWC decision-making.
204. See also L. Watters and C. Dugger, (1997), supra note 160, at 327. In 1946, most of the members were from commercial whaling countries.
205. See W.T. Burge, The New International Law of Fisheries, Clarendon Press, Oxford, 1994, p. 285. In the beginning, the whaling regulation was thus rather ineff ective, because pressure to increase whaling quotas led to a situation where the IWC disregarded Scientific evidence concerning whale populations. (Ibid., p. 298.)
206. W. T. Burge. (1994), The New International Law of Fisheries, Clarendon Press, ibid., p. 285.
207. A. D'Amato, and S. Chopra, Whales: Their Emerging Right to Life, 85 American Journal of Interna tional Law, 1991, 21-62, at 38. This change has come along with new developments in international environmental law, including an increasing recognition that marine natural resources are the common heritage of mankind.
208. See P. W. Birnie & A.E. Boyle, International Law and the Environment. New York, Oxford University Press, 1992 p. 424. To consider whales as the common heritage of mankind has been also criticized from the perspective of Aboriginal whaling. Doubleday states that 'to take whales and to declare that they are the "common heritage of mankind" and therefore would not be hunted by people who have depended on them and whose culture is based on that hunt, is a kind of intellectual imperialism closely related to the historical imperialism to which indigenous peoples have already lost so much.'
209. (See N.C. Doubleday, Aboriginal Subsistence Whaling: The Right of Inuit to Hunt Whales and Implications for International Environmental Law, 17 Denver Journal of International Law and Policy, 1989, 373-393, at 392.
210. A. D'Amato and S. Chopra, (1991), supra note 169, at 44.
211. Ibid., referring to the IWC/33d Mtg./1981, Chairman's Report, pp. 17-42.
212. C.T. Bright, The Future of the International Whaling Commission: Can We Save the Whales? 5 Georgetown International Environmental Law Review, 1993, 815-854 , at 820.
213. See International Whaling Commission at: http://www.iwcoffice..org/ conservation/catches.htm> See also A. D'Amato, and S. Chopra, (1991), supra note 169, at 46.
214. Over the last four centuries whaling has reduced the populations of diff erent sub-species of whales to the point where many sub-species are now endangered. Britain, France, Germany, Japan, the United States, and Russia have all contributed to the dramatic reduction of whale stocks. (See generally H.N. Scheiber, Historical Memory, Cultural Claims and Environmental Ethics, in H.N. Scheiber, (ed.), The Law of the Sea, Kluwer 2000, pp. 127- 166.)
215. During the last century, Norway has been the leading whaling nation. (See J.R. Paul, (2000), supra note 163, at 57.) The moratorium on Whaling was pushed by Britain, France, the Netherlands and the Seychelles. Japan, Peru, Norway, Iceland, and the Soviet Union opposed the ban, which passed with large support.
216. See Thirty-fourth Report of the International Whaling Commission, IWC, 34th meeting 1982.
217. See P.W. Birnie and A.E. Boyle (1992), supra note 169, at 455. The ICRW provided that any govern ment that fi les a timely objection to an amendment to the whaling schedule is exempted from the amend ment. (Article V of the ICRW) Norway, Japan and the Soviet Union all objected to the moratorium and were therefore not legally bound by it.
218. (See J. Paul, (2000), supra note 163, at 58.) In addition, the ICRW provided that notwithstanding any restriction on whaling, a party could authorize its nationals to engage in whaling for the purposes of 'scientifi c research' subject to limits imposed by the state party (Article VIII of ICRW). Since then, each year the pro-whaling countries have disregarded the moratorium while fi ght-ing unsuccessfully to overturn it within the IWC.
219. (See J. Paul, (2000), supra note 163, at 58.) Iceland withdrew from the IWC in 1992 and has refused to comply with the moratorium. (See W.C. Burns, The International Whaling Commission and the Future of Cetaceans: Problems and Prospects, 8 Colorado Journal of International Environmental Law and Policy, 1997, 31-88, at 48.) Despite worldwide condemnation, economic sanctions, and diplomatic pressure, Norway and Japan have continued commercial whaling operations at approximately the same rate as before the worldwide moratorium.
220. (See J.Paul, (2000), supra note 163, at 60.)
221. See International Whaling Commission, Aboriginal Subsistence Whaling, at: http://www.iwcoffice..org/conservation/aboriginal.htm> (visited 6 October 2007).
222. International Whaling Commission, Aboriginal Subsistence Whaling, at: http://www.iwcoffice..org/conservation/aboriginal.htm> (visited 2 July 2007). The catch limits to satisfy aboriginal subsistence need are established in accordance with certain principles. For stocks above the maximum sustainable yield (MSY) level, aboriginal subsistence catches are permitted up to 90 % of MSY; for stocks below the MSY level, catch levels are set so as to permit the stocks to rebuild to the MSY level; and the Scientific Com mittee was asked to advise on both a rate of increase towards the MSY level and a minimum stock level below which whales should not be taken from each stock.
223. See R. Gambell, (Secretary to the International Whaling Commission), Whaling in the North Atlantic - Economic and Political Perspectives, University of Iceland, 1997, ISBN 9979-54-213-6. Proceedings of a conference held in Reykjavik on March 1st, 1997, organized by the Fisheries Research Institute and the High North Alliance, p. 2. The article is available at: http://www. highnorth.no/library/Publications/iceland/re-de-in.htm> (visited 18 October 2007).
224. R. Gambell, Whaling in the North Atlantic - Economic and Political Perspectives, 1997, ibid.
225. International Whaling Commission, Aboriginal Subsistence Whaling, available at: http://www.iwcoffice..org/conservation/aboriginal.htm> (visited 2 July 2007).
226. See R.R. Reeves, The origins and character of 'aboriginal subsistence' whaling: a global review, Mammal Rev. 32 (2002), 2, 71-106, at 86-96. Canada withdrew from the IWC in 1982 but continues to allow abo riginal subsistence whaling for bowhead whales. See R.R. Reeves, (2002) and IWC (1997), Chairman's report of the forty-eighth annual meeting. Reports of the International Whaling Commission, 47, pp. 17-55.
227. See IWC, available at: http://www.iwcoffice..org/conservation/aboriginal. htm> (visited 15 Septem ber 2007).
228. Whale and Dolphin Conservation Society (WDCS), Aboriginal subsistence Whaling, available at: http://www.wdcs.org/> (visited 21 February 2008).
229. Aboriginal subsistence Whaling, Ibid.
230. G.P. Donovan, The International Whaling Commission and aboriginal/subsistence whaling: April 1979 to July 1981. Reports of the International Whaling Commission, 4 (Special Issue), pp. 79-86, part. 83.
231. After consideration of the many biological, nutritional and social aspects involved, the 1982 Annual Meeting of the IWC adopted a Resolution agreeing to implement an aboriginal subsistence whaling regime, See IWC 1983, Chairman's Report of the Thirty-Fourth Annual Meeting, Report of the International Whaling Commission 33: 20-42, at 28-29, 38.
232. The definition can be found also at: http://www.highnorth.no/library/ Culture/de-of-ab.htm> (visited 9 July 2007). The IWC still remains implicitly committed to these working definitions.
233. See R.R.Reeves, , supra note 179, at 76.
234. International Whaling Commission. 1983. Chairman's Report of the Thirty-Fourth Annual Meeting. Report of the International Whaling Commission, pp. 28-29, 38, 40.
235. R. Cambell, The Bowhead Whale Problem and the International Whaling Commission, Report of the International Whaling Commission, Special Issue No 4, at 49, Office of the Commission (1982).
236. Already in the 1931 Convention for the Regulation of Whaling, Aboriginal hunts were allowed only if 'they are not in the employment of persons other than aborigines [. . . and] they are not under contract to deliver the products of their whaling to any third person' (art. 3). More recently, the requirement of IWC concerning the non-commercial nature of Aboriginal whaling has been emphasized due to contin ued concern over threatened stocks and the possibility that the current moratorium may be eroded if a commercial element is introduced into ASW. Accordingly, most ASW applications have sought to exclude commercial elements from their request to hunt. See A. Gillespie (2001), supra note 165, at 106-107.
237. See A. Gillespie, (2001), supra note 165, at 106. According to the ASW requirements, the utilization of whales has to be done on a local scale as expressed in the fi rst Schedule to the 1946 Convention. This restriction was put forward and emphasized when countries that allowed the hunting of fully protected grey and right whales were asked to make sure that they were being consumed only locally by aborigines. See Sixteenth Meeting of the IWC, Office of the Commission (1964), at §16. The Cultural Anthropol ogy Panel has given a defi nition of local use. According to the Panel, local use includes 'the barter, trade, or sharing of whale products in their harvested form with relatives of the participants in the harvest, with others in the local community or with persons in locations other than the local community with whom local residents share familiar, social, cultural, or economic ties.' R. Gambell, (1982), supra note 185, at 49. Despite this clear defi nition, evidence has emerged that whale meat has not been used exclusively locally but in some cases has been distributed regionally, nationally or even internationally. A.Gillespie (2001), supra note 165, at 109-110. Gillespie refers to evidence that has emerged suggesting that the local quota of humpback whales in St. Vincent and the Grenadines has formed part of the island's international trade. The islands were the object of a rebuke from the IWC. In the Forty-First Meeting of the IWC, Australia brought to the IWC's attention that 'St. Vincent and the Grenadines had entered a specifi c reservation in CITES which would allow it to engage in international trade in humpback whale prod ucts.' The Report of the Forty-First Meeting of the IWC, Office of the Council (1989), p. 26. In Green land and in Alaska, whale meat is not used exclusively locally either. See A. Gillespie, (2001), supra note 165, at 109-110.
238. Ibid. For more on the nutritional requirement see Gillespie, A, (2001), supra note 165, at 99-105.
239. See Report of the Thirty-First Meeting of the International Commission on Whaling, Office of the Commission, (1979), app. 4.
240. See also A. Gillespie, (2001), supra note 165, at 101.
241. A. Gillespie, (2001), supra note 165, at 101.
242. In Thirty-T ird Meeting of IWC, Greenland argued that although a multi-species hunting strategy had been adopted, the nutritional needs of the indigenous people did not easily permit the substitution of other species. (See Report of the Thirty-T ird Meeting of the International Commission on Whaling, Office of the Commission (1981), at § 12.5.) The second example of a nutrition claim related to bio logical need comes from the hunt of the Chukotka aboriginal people. There, the extreme natural condi tions of the Asian far north dictate specifi c food needs of the aboriginal people. In this case, the lack of an alternative food source was a clear and justifi ed claim based on biological need.
243. (See The Report of the Forty-Eighth Meeting of IWC, Office of the Commission (1996), at 157.)
244. See E. Sander, Whales for Foxes in the Arctic Circle, Inuit Whaling, published by the Inuit Circumpolar Conference, June 1992. The article is available at: http://www.highnorth.no/Library/Hunts/Other/wh-fo-fo.htm> (visited 19 October 2007). This issue came up in the Forty-Eighth Meeting of the IWC. See the Report of the Forty-Eighth Meeting of IWC 21, Office of the Commission (1996), p. 26. The Russian Federation, however, assured, that by the late 1990s it had stopped this practice.
245. See the Report of the Forty-Ninth Meeting of the IWC, Office of the Commission (1997), p. 28.
246. D. Sones, The Makah Indians: Keeping Their Culture Alive, The International Harpoon, No.4, The High North Publication, 1995, published during the 1995 Annual Meeting of the International Whaling Commission. This quotation can be found in the summary of the article, pp. 1-2, available at: http://www.highnorth.no/Library/Hunts/Makah/th-ma-in.htm> (visited 20 September 2007).
247. See A.M. Renker, Whale Hunting and the Makah Tribe: A Needs Statement, IWC/59/ASW9, Agenda item 6. The document is available at: http://www.iwcoffice.. org/-documents/commission/IWC59docs/59-ASW%209.pdf> (visited 20 October 2007).
248. See the Report of the Forty-Ninth Meeting of the IWC, Office of the Commission (1997), p. 29.
249. See the Report of the Forty-Second Meeting of the IWC, Office of the Commission (1990), p. 31.
250. See the Report of the Fifty-First Meeting of the IWC, Office of the Commission (1999) at § 11.2.2.
251. For the discussion of the poverty requirement, see A. Gillespie (2001), supra note 165, pp. 103-105. Gillespiefinds the justification of nutrition in terms of social, psychological or cultural importance troublesome, since '[t]he social need approach may provide an open door for claims from almost any group occupying a lower socio-economic position. Moreover, given that the IWC does not have a mechanism by which all the signatories can evaluate the economic status of applicant groups, psychological, social and cultural need-based claim evaluation could become a very arbitrary process.' See A. Gillespie (2001), supra note 165, at 105.
252. A. Gillespie (2001), supra note 165, at 114.
253. R. Gambell, Recent Developments in the IWC Aboriginal Subsistence Whaling Category, in: G. Petursdottir, (ed.), Whaling in the North Atlantic: Economic and Political Perspectives, University of Iceland, 1997, p. 4.
254. R. Gambell, (1982), supra note 185, at 35.
255. See R. Caulfield, Greenlanders, Whales and Whaling: Sustainability and Self-Determination in the Arc tic, Dartmouth College, 1997, pp. 1-3.
256. In the similar vein, for instance concerning communities in St. Vincent and the Grenadines or the Makah in Washington State, the cultural signifi cance of whaling is much emphasized. See for instance A. Gillespie (2001), supra note 165, pp. 115-116.
257. See for instance I. Länsman v. Finland, Communication No. 511/1992, views of 26 October 1994; available at: http://www.unhchr.ch/tbs/doc.nsf/ (Symbol)/7e86ee6323192d2f802566e30034e775?Open document> (visited 21January 2007). The Committee 'recalls that the economic activities may come within the ambit of article 27, if they are an essential element of the culture of an ethnic community.' (Para. 10.2.)
258. For the same thing, see also J. and E. Länsman et al. v. Finland, Communication No. 1023/ 2001. U.N.Doc. CCPR/C/83/D/1023/2001 (2005), para. 10.1.-10.3.; available at: http://www.unh-chr.ch/tbs/doc.nsf/(Symbol)/ fa24fc7cd513751bc1256fe900525608?Opendocument> (visited 21 January 2007).
259. J.R. Paul, (2000), supra note 163, pp. 67-73.
260. See the website of the Makah people at: (visited 24 October 2007).
261. See Treaty of Neah Bay, Jan. 31, 1855 at http://explorenorth.com/library/ weekly/more/bl-MakahTreaty.htm> (visited 15 October 2007).
262. Makah whaling declined in 1915, when the large scale commercial practices of others brought the grey whale to the brink of extinction. See L.Watters, & C. Dugger, (1997), supra note 160, at 323.
263. Ibid..
264. K. Johnson, An Open letter To The Public From The President Of The Makah Whaling Commission, August 6th, 1998, available at: http://cnie.org/NAE/docs/ makaheditorial.html> (visited 15 September 2007).
265. Cetacean Society International, Whales Alive! Vol. V, No.3, July 1996, at: http://csiwhalesalive.org/ csi96301.html>(visited 16 September 2007).
266. See also Watters, L. & Dugger, C. (1997), supra note 160, at 334.
267. J. Firestone and J. Lilley, Aboriginal Subsistence Whaling and the Right to Practice and Revitalize Cultural Traditions and Customs, Journal of International Wildlife Law and Policy, 8, 2005, 177-219, pp. 198-199.
268. See A. Gillespie (2001), supra note 165, at 88-89.
269. See The Report of the Forty-Ninth Meeting of the International Commission on Whaling, 55, Office of the Commission (1997), p. 50.
270. See A. Gillespie (2001), supra note 165, at 89.
271. Gillespie points out that this 'usurpation' of the Aboriginal Subsistence Whaling Sub-Committee's power and obligation to examine the merits of individual ASW applications may be regarded as the fi rst major diffi culty arising from the ASW category. Ibid., at 89.
272. Sea Shepherd is an environmental NGO with a mandate to protect marine mammals and conserva tion with the immediate goal of shutting down illegal whaling and sealing operations, but also including the protection of other marine wildlife. See at: http://www.seashepherd.org/about-sscs.html> (visited 16 October 2007).
273. Letter from Hubert Markishtum (Chair, Makah Tribal Council) to National Marine Fisheries Serv ice, 5 May, 1995, as quoted on the website of the National Council for Science and the Environment, Native Americans and the Environment, The Makah Whaling Conflict, Arguments against the Hunt, at: http://www.cnie.org/ NAE/cases/makah/m5.html.> (visited 16 October 2007).
274. The same quotations can be found in J. Firestone, and J. Lilley, (2005), supra note 210, at 208.
275. National Council for Science and the Environment, Native Americans and the Environment, The Makah Whaling Conflict, Arguments against the Hunt, available at: http://www.cnie.org/NAE/cases/makah/m5.html.> (visited 16 October 2007).
276. An Open Letter To The Public From The President Of The Makah Whaling Commission, August 6th, 1998, available at: http://cnie.org/NAE/docs/ makaheditoral.html> (visited 24 October 2007).
277. J. Firestone and J. Lilley (2005), supra note 210, at 209-210.
278. A. Gillespie, (2001), supra note 165, at 122. Gillespie points out, however, that the Chukotka people have also revived their whaling culture after fi rst being curtailed by policies of the former Soviet Union. Furthermore, he points to the fact that the St. Vincent and the Grenadines' whaling tradition has a his tory of only about 100 years.
279. (Ibid., pp. 121-122.)
280. Ibid..
281. U.S. Delegation News Release, 10/23/97, at: http://www.publicaffairs. noaa.gov/pr97/oct97/iwc2.html> (visited 16 October 2007).
282. This issue is discussed in J.R. Paul, (2000), supra note 163, at 70-73.
283. See International Whaling Commission, Aboriginal Subsistence Whaling, http://www.iwcoffice..org/conservation/aboriginal.htm> (visited 6 October 2007).
284. See L. Watters and C. Dugger, (1997), supra note 160, at 337.
285. A. Dark, The Makah Whale Hunt, 1999, available at: http://cnie.org/NAE/ cases/makah/index.html> (visited 1 October 2007).
286. The Treaty of Neah Bay 1855 between Makah and the United States contains a Right of Makah to harvest whales. Available at: http://explorenorth.com/ library/weekly/more/bl-Makah Treaty.htm> (visited 2 October).
287. Cetacean Society International, Whales Alive! Vol. V, No.3, July 1996, available at: http://csiwhale-salive.org/csi96301.html> (visited 16 October 2007).
288. IWC, Resolution on Japanese Community-Based Whaling, Res. 2004-2 (2004); available at: http://www.iwcoffice.org/meeting/resolution2004.htm#2.> (visited 27 October 2007).
289. IUCN, The World Conservation Union, International Whaling Commission Reaffi rms Anti-Whal ing Stance, Japan T reatens to Withdraw, The 59th annual meeting of IWC, Anchorage, Alaska 28-31 May 2007, at: http://www.ictsd.org/ biores/07-06-08/story2.htm> (visited 15 October 2007).
290. K. Sumi, The "Whale War" Between Japan and the United States: Problems and Prospects, 17 Denver Journal of International Law and Policy, 1989, 317-372, at 318.
291. Since 1985, Japan has constantly tried to suggest that the IWC should recognize an exemption for aboriginal subsistence whaling for Japan's coastal whaling. Japan considers that its small-type coastal whaling has very many similar characteristics to aboriginal subsistence whaling, including the nature and size of the operations, the history and the need to meet the nutritional and cultural needs of the local people. See Report of the Thirty-Seventh Meeting of the International Commission on Whaling 19, Office of the Commission (1985). Norway has expressed support for the Japanese claim and argued that a distinction should be made between large-scale industrial operations and family enterprises in small communities. See, for instance, Report of the Thirty-Ninth Meeting of the International Commission on Whaling 19, Office of the Commission (1987), p. 21.
292. Norway has also emphasized the importance of whaling for its own local communities. See Report of the Forty-T ird Meeting of the International Commission on Whaling 32, Office of the Commission (1991). Iceland has practiced small-type whaling since 1914.
293. See The Report of the Forty-First Meeting of the International Commission on Whaling 19, Office of the Commission (1989), p. 26. Iceland has also argued that the distinction between aboriginal and commercial whaling is one of a 'dubious legal format.'
294. See The Report of the Forty-T ird Meeting of IWC (supra this note), p. 29.
295. See the Report of the Forty-Ninth Meeting, Office of the Commission (1997), p. 11.
296. See Summary Statement, Action Plan for Japanese Community Based Whaling, The Government of Japan, 1995, available at: http://luna.pos.to/whale/gen-act95- sum.html> (visited 21 October 2007).
297. Resolution on Japanese Community-Based Minke Whaling, in Forty-Fourth Meeting of the IWC, Office of the Commission, (1992), p. 31.
298. See the Report of the Thirty-Seventh Meeting of the IWC, Office of the Commission (1985), p. 11.
299. Thirty-Seventh Meeting, at § 6.1.
300. See the Report of the Forty-First Meeting of the IWC, Office of the Commission (1989), p. 13.
301. See A. Gillespie, (2001), supra note 165, at 108.
302. J.R. Paul, (2000), supra note 163, at 69.
303. Additionally, Chris Stroud makes the following observation: 'Anthropologists have pointed to the fact that the Alaskan North Slope Eskimos are economically very diff erent to the peoples who hunted whales a century ago. Oil exploitation has brought pollution, disruption and a host of new people to Alaska. It has also brought enormous amounts of money to the local people. To the casual observer, the continued hunting of these leviathans from modern skidoos and helicopters is straining the defi nition of what is aboriginal. [. . .] Many commentators are wary of this debate as it takes them into the grey world of questions of identity and what actually constitutes a people.' C. Stroud, When Cultures Clash with International Pressure. Continued Hunting by Aboriginals is Becoming Less Acceptable in the Modern World, The Scotsman, 18 June 1996, at 17. The article is available at: http://www.highnorth.no/library/ movements/WDCS/wh-cu-cl.htm> (visited 25 October 2007).
304. Interestingly, anti-whaling groups such as Greenpeace and the Whale and Dolphin Conservation Society have remained neutral, for instance on the Greenlandic hunt. Greenpeace says, '[We do not] oppose (but nor do we support) aboriginal subsistence whaling.' This has led nations in favour of commercial hunting, such as Japan and members of the High North Alliance, to accuse anti-whaling bodies of hypocrisy. Much of the Greenlandic hunt is carried out using modern explosive harpoons and substantial boats rather than single-man canoes and spears as in the past. Moreover the Greenlandic hunt has a commercial aspect: whale meat can be purchased in shops in northern Greenlandic towns such as Ilulis-sat. Japan has said that it regards this tacit approval of the commercial Greenlandic hunt by the IWC but continued opposition to coastal hunting in Japan as 'racist' and reeking of 'cultural imperialism', particularly because the Japanese plans indicated that the local catch would be consumed locally. This apparent double standard has caused even more fury amongst the Japanese public than the prohibition of commercial whaling.
305. See http://en.wikipedia.org/w/index.php?title=Aboriginal- whaling&action=edit§ion=1> (visited 15 October 2007).
306. WDCS, Aboriginal Subsistence Whaling, available at: http://www. stopbloodywhaling.org/docs/aboriginal.pdf> (visited 15 October 2007).
307. J.R. Paul, (2000), supra note 163 p. 66.
308. H.P. Johansen, Deputy Director General - Department of Marine Resources and Environment, Opposition to Whaling - Arguments and Ethics, 2nd Symposium on Whaling and History, September 8th-10th, 2005, The Whaling Museum Standef ord. The document is available at: http://www.regjerin-gen.no/nb/dokumentarkiv/ Regjeringen-Bondevik-II/Fiskeri--og-kystdepartementet/265716/269165/ opposition-to-whaling-arguments.html?id=269786> (visited 27 October 2007).
309. H. P. Johansen, 2nd Symposium on Whaling and History, 2005, Ibid.
310. See, for instance, A. D'Amato, S.K. Chopra, (1991), supra note 169.
311. Importantly, since the mid-1970s, animal welfare issues - particularly the question of humane killing methods - have become prominent within the IWC, and from 1980 on, the issue of humane killing has been regularly discussed at the Commission. See International Whaling Commission, Welfare Issues, Information and research on whale killing methods and associated animal welfare issues, at: http://www.iwcoffice,org/conservation/welfare.htm> (visited 2 July 2007).
312. See the latest Report of the Working Group on Whale Killing Methods and Associated Welfare Issues, 22 May 2007, at: http://www.iwcoffice.org/-documents/ commission/IWC59docs/59-Rep6.pdf> (visited 2 July 2007).
313. Many scientists, as well as the IWC, have expressed concern about the traditional killing methods used by indigenous communities which are less accurate and less effi cient than those used in commercial whaling operations. See, for instance, P. Brakes, A. Butterworth, M. Simmonds and P. Lymbery (eds.), Troubled Waters, A Review of the Welfare Implications of Modern Whaling Activities, World Society for the Protection of Animals, (WSPA), 2004, pp. 44-50.
314. IWC has urged indigenous peoples to adapt modern, less painful technology. See at: http://www.iwcoffice,org/conservation/welfare.htm> (visited 2 July 2007).
315. ICRW, preamble.
316. J. Paul, (2000), supra note 165, at 60. Among the most critically endangered seem to be the North Pacifi c and North Atlantic northern right whales, bowhead whales of the eastern Arctic, western Pacifi c grey whales and most blue whale populations. In addition, some local populations appear to have been almost entirely extirpated; examples include the humpbacks and blue whales that once occupied the sea areas around South Georgia, New Zealand humpback whales, Spitsbergen bowheads, Gibraltar fi n whales, North Atlantic right whales, and blue whales off Japan.
317. See C.S. Baker, and P.J. Clapham, Marine Mammal Exploitation: Whales and Whaling, Volume 3, Causes and consequences of global environmen- tal change in I. Douglas (ed.), Encyclopedia of Global Environmental Change, John Wiley & Sons, Ltd, Chichester, 2002, pp. 446-450.
318. W.C. Burns, International Whaling Commission and the Future of Cetaceans: Problems and Pros pects, 8 Colorado Journal of International Environmental Law and Policy, 1997, 31-88, at 54-64.
319. On 12-13 April 2007, the Symposium on the State of the Conservation of Whales was organized at UN Headquarters with participants within the IWC community as well as experts in conservation, law and other relevant fi elds. Michael Tillman, Research Associate in the Center for Marine Biodiversity and Conservation, Scripps Institution of Oceanography, provided a perspective within the IWC. Addressing the Scientific underpinnings of the current whaling controversy, he noted problems related to uncertainties in stock assessments, including: large information requirements to determine maximum sustainable yield; signifi cant gaps in critical data; the inability to ascertain the status of many stocks; mixing of stocks on whaling grounds; lack of knowledge on the potential recovery of depleted stock; and absence of accounting for the eff ects of environmental change. Tillman also addressed enforcement issues, including inspections, as well as illegal, unregulated and unreported catches. See A Report of the Symposium on the State of the Conservation of Whales in the 21st Century: 12-13 April 2007, available at: http://www.seaaroundus.org/ OtherWebsites/2007/EarthNegotiations-WhaleSymposiumBulletin.pdf> (visited 15 October 2007).
320. Concerning the West Greenlandic stocks of humpback and fi n whales, by the early 1980s, the Scien- tifi c Committee concluded that the humpback stock had been substantially depleted and recommended that every eff ort be made to reduce the number of removals. (See the Report of the Thirty-T ird Meeting of the IWC, Office of the Commission, 1981, at § 12.5.) Accordingly, the following year, the Scientific Committee recommended that the Greenland exception for ten humpback whales per year was to be eliminated.
321. (See the Report of the Thirty-Fourth Meeting, Office of the Commission, 1982, at § 14.3.3.) This recommendation, however, was never accepted by the Commission. (See the Report of the Thirty-Fifth Meeting of the IWC, Office of the Commission, 1983, § 14.1.) In 1982 new evidence suggested that the situation was not as serious as previously believed. (T irty-Fourth Meeting, p. 30.) Nevertheless, in the face of the uncertainties, the Scientific Committee once more recommended that the Greenland exemption be removed. (Ibid ).
322. Gillespie has studied this issue in A. Gillespie (2001), supra note 165, pp. 133-134. During the same period, the number of fi n whales taken increased to a total of ten per year among the West Greenland stock. This quota was taken from a population that scientists had been unable to measure with any certainty. (A. Gillespie (2001), supra note 165, at 134.) This uncertainty in measuring was expressed many times by the Scientific Committee. (Ibid.) For instance in 1988 the Scientific Committee noted that it had never been able to provide satisfactory advice on those stocks due to the lack of requisite data, particularly on stock identity and abundance.
323. (See the Report of the Fiftieth Meeting of the IWC, Office of the Commission, 1988, p. 12.) A similar uncertainty with regard to stock numbers has also emerged regarding West Greenland minke.
324. See A. Gillespie (2001), supra note 163, at 134-135.
325. See A. Gillespie (2001), supra note 165, at 129-135.
326. R. Gambell, (1997), supra note 176, at 2.
327. R. Gambell, supra note 185, at 160.
328. R. Gambell, (1997), supra note 176, at 2.
329. A. Gillespie (2001), supra note 165, at 130-131.
330. H. Huntington, Alaska Eskimo Whaling, Inuit Whaling, Published by Inuit Circumpolar Conference, June 1992, Special issue; available at: http://www.highnorth.no/Library/Hunts/Other/al-es-wh.htm> (visited 18 January 2008).
331. See also Overview of the Alaska Eskimo Whaling Commission at: http://www.uark.edu/misc/jcdixon/Historic-Whaling/AEWC/AEWC.htm> (visited 18 January 2008).
332. G.P. Donovan, The International Whaling Commission and Aboriginal Subsistence Whaling: April 1979 to July 1981, Report of the International Whaling Commission, Special Issue No. 4, pp. 79, 82-83.
333. G.P. Donovan, The International Whaling Commission and Aboriginal Subsistence Whaling: April 1979 to July 1981, Special Issue No. 4, pp. 79, Ibid.
334. G.P. Donovan, The International Whaling Commission and Aboriginal Subsistence Whaling: April 1979 to July 1981, Special Issue No. 4, pp. 79, Ibid. The issue of endangered species and aboriginal whaling is studied by Gillespie in A. Gillespie (2001)
335. supra note 165, pp. 129-135.
336. H. Huntington, (1992), p. 1.
337. A. Bailey, Traditional knowledge is finding its place, The knowledge of the Native people of the North Slope is playing an increasingly important role in energy decision making, Petroleum News, Vol.12, No.51, December 23, 2007.
338. M.R. Freeman, The Nature and Utility of Traditional Ecological Knowledge, Northern Perspectives, Pub lished by Canadian Arctic Resource Committee, Vol.20, No.1, Summer 1992, p. 4; available at: http://www.carc.org/pubs/v20no1/ index.html> (visited 18 January 2008).
339. A. Bailey, (2007), supra note 258.
340. See also M.M. Freeman, The Alaska Eskimo Whaling Commission: successful co-management under extreme conditions, in: E. Pinkerton (ed.), Co-operative Management of Local Fisheries, Vancouver, University of British Columbia Press, pp. 137-153.
341. NOAA Fisheries, National Marine Fisheries Service, at: http://www.fakr.noaa.gov/protectedresources/whales/bowhead/> (visited 18 January 2008).
342. R. Gambell, supra note 176.
343. IUCN 2007. 2007 IUCN Red List of Treatened Species. www.iucnredlist. org> (visited 18 January 2008).
344. US Code Collection, available at: http://www4.law.cornell.edu/uscode/ html/uscode16/usc-sup-01-16-10-35.html> (visited 18 January 2008).
345. Final Environmental Impact Statement for Issuing Annual Quotas to the Alaska Eskimo Whaling Commission for a Subsistence Hunt on Bowhead Whales for the Years 2008 T rough 2012, January 2008, Prepared by U.S. Department of Commerce National Oceanic and Atmospheric Administration National Marine Fisheries Service; available at: http://www.fakr.noaa.gov/protectedresources/ whales/bowhead/eis0108/bowheadEISall.pdf> (visited 19 February 2008).
346. IUCN, at: http://www.ictsd.org/biores/07-06-08/story2.htm> (visited 15 October 2007).
347. See also International Whaling Commission, 2007 Meeting, Details for The International Whaling Commission's 59th annual meeting in Anchorage, USA 2007, at: (visited 15 October 2007).
348. J.R. Paul, (2000), supra note 163, pp. 66-67.
349. IUCN, at: (visited 19 February 2008).
350. See, for instance, UN Human Rights Committee: General Comment No 23(50), A/49/40, Vol.I (1994), Annex V (p. 107-110);
351. CCPR/C/21/Rev.1/Add.5; available at: (visited 1 January 2008).
352. See also Maya Indigenous Communities of the Tolero Distric (Belize Maya), Case 12.053, Report No. 40/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004), para. 166; available at: (visited 22 January 2007).
353. See generally J. Pernetta, R. Leemans, D. Elder and S. Humphrey, Impacts of Climate Change on Ecosystems and Species: Marine and Coastal Ecosystems, IUCN, Cambridge, UK, and Gland, Switzerland, 1994.
354. A. Fikkan, G. Osherenko and A. Arikainen, Polar bears: The importance of simplicity, in: O.R. Young, and G. Osherenko, (eds.), Polar Politics: Creating International Environmental Regimes. Cornell University Press, Ithaca, NY, 1993, pp. 96-151.
355. M.M.R Freeman, Polar Bears and Whales: Contrasts in International Wildlife Regimes, Issues in the North, Volume 1, Occasional Publication Number 40, Edmonton: Canadian Circumpolar Institute, University of Alberta, 1996. A summary of the article can be found at: (visited 10 September 2007). The citation can be found in the summary, p. 3.
356. Washington, DC, 16 October 2000; available at: (visited 1 September 2007).
357. Agreement between the Inupiat of Alaska and the Inuvialuit of Canada in relation to the southern Beaufort population, 4th of March 2000 (superseding the previous Agreement between the Inuvialuit and the Inupiat on Polar Bear Management in the southern Beaufort Sea signed in January 1998); avail able at: (visited 1 September 2007).
358. M.M.R. Freeman, (1996), supra note 272, at 3.
359. Article III of the International Agreement on Conservation of Polar Bears of 1973.
360. See Article IV.
361. See the Preamble of the Agreement.
362. S. Norris, L. Rosentrater and P.M. Eid, Polar Bears at Risk, A WWF Status Report, 2002, at 19.
363. See also P. Prestrud, and I. Stirling The International Polar Bear Agreement and the current status of polar bear conservation. 20 Aquatic Mammals, 1994, 1-12.
364. P. Prestrud, and I. Stirling, 20 Aquatic Mammals, 1994, Ibid., p. 19.
365. See also the official webpage of PBSG, available at: (visited 11 September 2007).
366. Resolution from the 11th meeting of the PBSG in Copenhagen 1993; available at: (visited 19 February 2008).
367. See, for instance, Nunavut Tunngavik Incorporated, available at: (visited 20 February 2008).
368. S. Norris et al., (2002), supra note 279, at 14.
369. See WWF-Canada Statement on Polar Bears, January 9, 2007, at: (visited 23 October 2007).
370. Natural Resource Defence Council, Climate Facts, Polar Bears on Thin Ice, referring to PBSG's report of 2001; available at: (visited 3 November 2007).
371. See for instance 'Polar Bears are The Wrong Target Say Inuit' by Clive Tesar, available at: (visited 20 February 2008).
372. CBC News, Last Updated: Tuesday, October 30, 2007, 'Nunavut environment minister blasted over polar bear quota cut'; available at: (visited 20 February 2008).
373. S. Norris et al., (2002), supra note 279, at 22.
374. See ACIA, Arctic Climate Impact Assessment (Cambridge University Press, 2005), particularly chapters 11 and 12. This document is available at: (visited 30 March 2007).
375. S. Norris et al., (2002), supra note 279, at 22.
376. WWF-Canada Statement on Polar Bears, supra note 284, at 2.
377. Ibid..
378. The Endangered Species Act requires the US federal government to identify species threatened with extinction, identify the habitat they need to survive, and help protect both. See the US Endangered Spe cies Act of 1973; available at: (visited 12 September 2007).
379. See (visited 12 September 2007).
380. (visited 1 July 2008).
381. IUCN 2007. 2007 IUCN Red List of T reatened Species (visited 18 January 2008).
382. See AMAP, 2004. AMAP Assessment 2002: Persistent Organic Pollutants in the Arctic. Arctic Monitoring and Assessment Programme (AMAP), Oslo, Norway, particularly pp. 115-120.
383. See also (visited 1 July 2008).
384. Polar bear management in Greenland by Deputy Minister, Amalie Jessen, 26-28 June 2007 - Polar Bear Range State's Meeting, Shepherdstown, West Virginia, USA (NCTC), p. 16; available at: (visited 19 February 2008).
385. S. Norris et al., (2002), supra note 279, at 14.
386. See, for instance, (visited 4 October 2007).
387. Speech Notes for Sheila Watt-Cloutier, Chair, Inuit Circumpolar Conference (presently Council), Conference of Parties to the United Nations Framework Convention on Climate Change, Milan, Italy, December 10, 2003; available at: (visited 6 February 2008).
388. See Conservation Hunting in the North available at (visited 9 October 2007).
389. Article IV.
390. See Van der Peet v. The Queen (1996) 137 DLR (4th) 289 (SCC), paras. 59-61; available at: (visited 9 October 2007).
391. Ibid., para. 46.
392. For more about the concept of inherent rights, see L. Heinämäki, Inherent Rights of Aboriginal Peoples in Canada - Reflections of the Debate in National and International Law, 8 International Community Law Review, 2006, 155-202.
393. See also M. Asch and P. Maclem, Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow. 29 Alberta Law Review, 1991, 2, 498-517.
394. I. Länsman et al. v. Finland, supra note 202, para. 9.3.
395. For this discussion in the context of Canadian Aboriginal rights, see K. McNeil, The Meaning of Aboriginal Title, in: M. Asch (ed.), Aboriginal and Treaty Rights in Canada, Essays on Law, Equality, and Respect for Difference, UBC Press University of British Columbia, Vancouver, Canada, 1997, pp. 135- 154, at 151-154;
396. R.L. Barsh and J.Y. Henderson, The Supreme Court's Van der Peet Trilogy: Naïve Imperialism and Ropes of Sand, 42 McGill Law Journal, (1997). 994-1009;
397. J. Borrows, Sovereignty's Alchemy: An Analysis of Delgamuukw v. British Columbia, 37 Osgoode Hall Law Journal, 1999, 3, 538-597, at 567-574.
398. See for instance B. Ganz, Indigenous Peoples and Land Tenure: An Issue of Human Rights and environmental Protection, 9 Georgetown International Environmental Law Review, Fall 1996,173-193, at 173.
399. B. Ganz, 9 Georgetown International Environmental Law Review, 1996, Ibid., pp. 176-177.
400. The Workshop on Traditional Knowledge and Biological Diversity (TKBD), Report of the Work shop, UNEP/CBD/TKBD/1/3, 1997, p. 2.
401. B.J. Richardson, (2001), supra note 73, at 3.
402. R.L. Barsh, Indigenous Peoples, in: D. Bodansky, J. Brunnée and E. Hey, (eds.), The Oxford Hand book of International Environmental Law, Oxford University Press, 2007, Chapter 36, pp. 830-851, at 850.
403. Barsh, for instance, claims this, although namely emphasizing human rights; see Barsh, The Oxford Hand book of International Environmental Law, Oxford University Press, 2007, Chapter 36, pp. 830-851, ibid.
404. The right to self-determination of indigenous peoples is guaranteed in Article 3 of the Declaration.
405. See Concluding Observation of the Human Rights Committee on Canada UN Doc. CCPR/C/79/ Add.105 (1999). Explicit references to either Article 1 or to the notions of self-determination have also been made in the Committee's Concluding Observations on Mexico, UN Doc. CCPR/C/79/Add.109 (1999), Norway, UN Doc. CCPR/C/79/Add.112 (1999), Australia, UN Doc. CCPR/CO/69/Aus (2000), Denmark, UN Doc. CCPR/CO/70/DNK (2000), Sweden, UN Doc. CCPR/CO/74/SWE (2002), Finland, UN Doc. CCPR/CO/82/FIN, (2004) Canada again, UN Doc. CCPR/C/CAN/CO/5, (2005), Concluding Observation on the United States, UN Doc. CCPR/C/USA/CO/3 (2006).
406. See S. Wiessner, Rights and status of indigenous peoples: a global comparative and international legal analysis, 12 Harv. Human Rights J., 1999, 57-128, at 57.
407. S.J. Anaya, International Law and Indigenous Peoples. OUP, New York, 1996, pp. 257-328.
408. See T. Koivurova and L. Heinämäki. The participation of indigenous peoples in international norm- making in the Arctic, 42 Polar Record, 2006, (221)101-109 at 103.
409. B.J. Richardson (2001), supra note 73, at 11.
410. Ibid..
411. Indigenous Peoples' Political Declaration, Prep. Com. I V, Bali, Indonesia, 6 June 2002, supra note 19.
412. International Covenant on the Rights of Indigenous Nations, authorized version initialed July 28, 1994, Geneva, Switzerland. The document can be found at: (visited 22 October 2007).
413. R.L. Barsh, (2007), supra note 316, at 850.
414. Ibid..
415. Ibid..
416. Ibid., p. 851.
417. Ibid..
418. B.J. Richardson (2001), supra note 71, at 11.
419. See, for instance, United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment: Preliminary Report, U.N. Doc. E/CN4./ Sub.2/1991/8 (1991);
420. United Nations Subcommission on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment: Second Progress Report, U.N. Doc. E/CN.4/ Sub.2/1993/7 (1993);
421. See generally Section 2 of this article.