This article analyzes legal approaches for meeting the needs and interests of local human communities that utilize biodiversity and inhabit areas important for their conservation. Effectively addressing these needs is a crucial area for international law concerned with the sustainable development of biological diversity.(1) This article further suggests directions that international law should take to promote realization of this objective. It draws upon the perspective of law as process.(2) In this context, it recognizes that indigenous and other long-term occupant communities are participants(3) in the international system, and proposes that international political and legal structures must accommodate this reality in order to find adequate solutions to many challenges facing global society.
The majority of existing international instruments have failed to provide a supportive legal environment for local resource dependent populations that would enable these populations to manage in a sustainable manner forests and other components of biodiversity which they utilize or over which they exercise effective control. This state of affairs has devalued the worth of resources to local communities and has acted as a disincentive(4) for them to promote sustainable development. It has interfered with the overall effectiveness of conservation regimes. Until very recently, conservation initiatives generally have ignored the following three components vital to meeting their purposes: recognizing resource access rights and security for local communities; enabling local communities to participate effectively in resource management decisions under the regimes; and requiring equitable sharing with local communities of benefits arising out of the use of natural resources. Realizing sustainable development of the world's remaining biodiversity requires that these imperatives be integrated into the relevant international instruments.
The challenge for international law is either to modify existing conventions and other regimes dealing with conservation, or to create new, more appropriate instruments that accurately reflect the link between long-term occupants and conserving biodiversity. This concern applies particularly to those aspects of the biological heritage lying outside of protected areas or in officially protected areas that are also the home and/or source of livelihood for local resource-user communities.(5)
Some recent international texts generally reflect a changing perspective on the status of local communities in facilitating environmental protection and sustainable development.(6) Pronouncements in Agenda 21,(7) the UNCED Forest Principles(8) and the Rio Declaration,(9) providing that governments should promote participation of local communities in the environmental protection and development process, evidence this shift in focus. However, much of the content of these instruments does not address the core issue of creating inducements for local communities to manage forests and other resources of biological diversity sustainably. This issue is not limited to the developing countries. It cuts across the North-South divide. In the United States, the controversy manifests itself between local (logging and fishing) communities and state and local authorities in the Pacific Northwest over the management of old growth forests and salmon fisheries.(10)
The treaties and other instruments that constitute the international regimes for conserving living resources, by and large, emphasize cooperation among states, and more recently international organizations,(11) to achieve their objectives. Given the transboundary character of many major environmental threats, including biodiversity depletion, multilateral cooperation is both desirable and necessary for addressing these challenges. However, attention to the socio-economic needs and interests at the local level and, in particular, the concerns of local communities, including traditional and/or long-term occupant communities, has been distinctly absent or at best given only peripheral treatment in most existing conventions. …