About the author

Raquel Soto, Scholar in International Public Law and Law of the Sea. LLM in Maritime Studies from the University of Wollongong, BA in International Public Law from the National Autonomous University of Mexico (UNAM), and author of the book “The Right of Innocent Passage in Mexico” (in the Spanish language) published by the Legal Research Institute of UNAM.

The Treaty on Biodiversity Beyond National Jurisdiction: Challenges and Opportunities for Indigenous Peoples and Local Communities (IPLC)

Before the adoption of the Treaty on Biodiversity Beyond National Jurisdiction (BBNJ) in 2023, the Arctic Council was one of the few institutions at the international level that formally recognised Indigenous Peoples and their traditional knowledge in the processes of decision and policy-making. The Arctic Council holds six Indigenous Peoples organisations as permanent participants pursuing inclusive cooperation on regulatory frameworks of consensus-based decision-making, one of its most distinctive features.

On 05 March 2023, after two decades, five rounds of negotiations, and the COVID-19 pandemic from 2020 to 2023, the text of the BBNJ treaty to conserve and ensure sustainable use of marine biodiversity in ABNJ was finally agreed and was formally adopted on 19 and 20 June 2023. One of the novels of the BBNJ treaty is the decolonisation of knowledge with the inclusion of Indigenous Peoples and local communities (IPLC) and their traditional knowledge in the decision and policy-making process. For example, article 5, para. (i) of the BBNJ treaty, states as one of the principles and approaches that shall guide Parties to achieve the objectives of the BBNJ treaty is the use of relevant traditional knowledge of IPLC. Decolonising knowledge implies delinking from the so-called “universal” and “objective” knowledge. Then, the decolonial alternative pursues the preservation and regeneration of IPLC and their traditional knowledge and ways of life, among other things. For example, the BBNJ treaty pursues the protection and preservation of the marine environment and biodiversity in ABNJ integrally as conceived initially by IPLC’s traditional knowledge.

The BBNJ treaty is a landmark and inclusive binding instrument which recognises IPLC and their rights, addressing a historical injustice. In 1537, Pope Paul III in the Bull Sublimis Deus affirmed that Indians, referring to the Indigenous Peoples of the Americas, were by no means to be deprived of their liberty or the possession of their property, among other things. However, the Bull Sublimis Deus was never enforced. Over the following centuries, many forces, such as the colonial powers, elites [1] and institutions worked against the recognition of IPLC rights. It was not until 13 September 2007, with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) adopted by the General Assembly, that IPLC rights were recognised at the international level in a non-binding soft law instrument. Notably, the BBNJ treaty preamble refers to the UNDRIP, adding value to it.

Indigenous Peoples have a global population of four hundred seventy-six million, with IPLC either owning, occupying, or using a land area of roughly a quarter of the Earth’s terrestrial surface. Of the lands managed by IPLC, ninety-one per cent were found to be in good ecological condition. The status quo of the Indigenous Peoples’ lands and territories provides compelling evidence that without their full inclusion, humankind may fail to build a new sustainable, equitable international economic system. The BBNJ treaty recognises and respects Indigenous Peoples’ and local communities’ rights, governance approaches, and conservation efforts, in relation to marine biodiversity in ABNJ.

Indigenous peoples face multiple barriers to participating fully in the decision and policy-making process. Despite Indigenous peoples’ knowledge being increasingly recognised, it is rarely considered by scholars and decision-makers. For example, IPLC were largely ignored in the three rounds of negotiations of the United Nations Convention on the Law of the Sea (i.e., UNCLOS I, UNCLOS II, and UNCLOS III). As a result, the LOSC neither provides specific provisions regarding IPLC nor mechanisms to participate in the decision and policy-making process, especially for those autonomous (nations of) Indigenous Peoples recognised by States Parties to LOSC in their domestic laws and regulations and who identify themselves as coastal communities or island inhabitants.

Over the last twenty years, Indigenous Peoples’ rights have been increasingly recognised with the adoption of various international instruments and institutions. However, often at the domestic level, Indigenous Peoples still lack formal recognition of their lands, territories, and natural resources. Most of the land occupied by Indigenous Peoples is under customary ownership, yet States recognise only a fraction of this land as formally or legally belonging to them. Even when Indigenous Peoples’ territories and lands are recognised, protection of boundaries or external parties’ use of natural resources is often weak. Insecure land tenure, among other things, is a driver of conflict and environmental degradation, which in turn threatens Indigenous Peoples’ cultural survival and vital knowledge systems, both of which contribute to ecological integrity, biodiversity, and environmental health upon which all life forms on Earth, including humankind, depend.

The development of the rights of Indigenous Peoples primarily focused on land-based territorial rights, although the seas and ocean are an integral part of the State’s territory. Thus, the BBNJ treaty is a breakthrough in recognising the rights of Indigenous Peoples and local communities, particularly coastal communities and island inhabitants, with regard to the law of the sea affairs at the international level. Many delegations advocated for the inclusion of Indigenous Peoples and local communities’ knowledge in the BBNJ treaty. For example, on behalf of the Pacific Small Island Developing States (PSIDS), Nauru called to include Indigenous Peoples’ knowledge in the conservation and sustainable use of BBNJ. The Federated States of Micronesia (FSM) highlighted the interconnection of Indigenous Peoples’ knowledge of marine biodiversity, specifically in the conservation and sustainable use of marine resources within maritime zones either under the sovereignty or jurisdiction of the coastal or archipelagic States and ABNJ.

Indigenous Peoples are interconnected with the seas and ocean, particularly to ABNJ, through cultural practices, stewardship, and sustainable use of migratory species. For example, Indigenous Peoples’ (traditional) knowledge of highly migratory species is crucial in understanding life cycles and migratory patterns, prey and predator relationships, and habitat preferences. Moreover, Indigenous Peoples’ knowledge is vital in identifying and designating MPAs, aiming for the protection and preservation of the marine environment, particularly rare or fragile marine ecosystems, as well as the habitat of depleted, threatened, or endangered species and marine biodiversity as a mandated in Article 194, para.5 of the LOSC, holistically.

The formal adoption in June 2023 was the first challenge to the historical achievement of decolonisation of knowledge and formal inclusion of Indigenous Peoples and local communities in the decision and policy-making process at the international level in the law of sea affairs. The States parties to the BBNJ treaty should now implement the necessary means for the effective participation of Indigenous Peoples and local communities in the BBNJ treaty affairs, such as but not limited to the decision and policy-making process. In this context, the upcoming opportunities for the advancement of Indigenous Peoples and local communities and humankind are endless.

[1] Elites are considered to be groups of individuals that due to their economic resources, expertise/knowledge, social networks, or positions in political or other organisations stand in a privileged position to influence in a formal or informal way decisions and practices with key social and environmental implications. Benedicte Bull and Mariel Aguilar-Stoen, “Changing Elites, Institutions and Environmental Governance,” in Environmental Governance in Latin America, ed. Castro Fábio de., Barbara Hogenboom, and Michiel Baud (London: Palgrave Macmillan UK, 2016), p. 158.

The Treaty on Biodiversity Beyond National Jurisdiction: Challenges and Opportunities for Indigenous Peoples and Local Communities (IPLC) / ECO LAW Blog by blogadmin is licensed under a Creative Commons Attribution CC BY 3.0