Rights with limits: biocultural rights - between self-determination and conservation of the environment

Abstract

Kabir Bavikatte has recently argued that a new 'basket' of group rights is emerging from the interpretation of multilateral environmental agreements, domestic law and case law, and from shifts in the development discourse and the struggles of communities. He refers to this new set of rights as 'biocultural rights' and defines them as being all the rights of indigenous peoples and local communities required to secure their stewardship role over their lands and waters. Biocultural rights build on two foundations: the self-determination and cultural diversity of indigenous peoples and local communities, and the conservation of the environment. This article suggests that the second foundation is what makes biocultural rights potentially more appealing than other human rights but that it is also the reason for their sui generis potential. Unlike human rights generally, biocultural rights seem to be aimed at protecting not only the interests of their right-holders, indigenous peoples and local communities, but also seem to protect a general interest of humankind in the conservation of the environment through the impositions of stewardship duties on rights-holders. Therefore, it is suggested that while biocultural rights provide a promising instrument for the promotion and protection of the interests of indigenous peoples and local communities, they also require such peoples and communities to be conscious of the fact that they, as biocultural rights-holders, take on a potentially inequitable duty towards environmental sustainability that limits their self-determination interests. The article explores some of the conceptual tensions emerging from this possibility and from the fact that indigenous peoples and local communities are presented as co-referents for the same umbrella of rights.