Globalization, Communities and Human Rights: Community-Based Property Rights and Prior Informed Consent
Magraw, Daniel Barstow, Baker, Lauren, Denver Journal of International Law and Policy
Globalization is placing increasing stress on individuals and communities, particularly in rural areas in developing countries. Increased trade and other economic activities, for example, result in higher demand for wood and other forest products, oil and other minerals, fish products, arable land, etc.--resources that indigenous and other local communities often depend upon for their livelihoods and cultures. Large-scale development projects such as dams, mines and highways often displace local populations, exploit their natural resource base, and interfere with or destroy their livelihoods and cultures. (2) Even new protected areas such as national parks--terrestrial and maritime--often displace local populations or restrict their access to land and resources on which they traditionally rely. (3)
Local communities often are unable to protect themselves in the face of these pressures. There are various reasons for their vulnerability, ranging from limitations in resource mobilization or technical expertise to more structural issues of political opportunity and power dynamics. Many communities lack knowledge or experience in mobilizing resources to defend their rights, such as technical, scientific or legal expertise, or other helpful skills such as how to use the media. At the most basic level, communities may not have access to a base of resources, like a place to meet, money for basic supplies such as copying and telephones, or technology such as computers and the internet. (4)
A more pervasive and structural problem is that rural people, while comprising a large majority in many developing countries, are frequently neglected, or even repressed, by national governments or local elites. A set of political variables, such as the openness of the political system, the State's capacity or propensity for repression, the stability of elite alignments, and the presence of elite allies all may influence the ability or limitations of a community to protect itself in the face of pressures. (5) Fundamental political and economic problems and the exploitation of the politically powerless often result in environmental injustices, including disparities in the benefits that flow from natural resources development. (6)
A related concern is that many nations continue to mirror the policies and biases of their former colonial governments, including land laws. In many countries, including in much of Asia and Africa, the State claims ownership of vast areas, including areas traditionally occupied by indigenous groups. Since political independence was attained in the 1960s by many African nations, State assertions of ownership have actually been broadened and legally strengthened in many nations. (7) In Indonesia, the State's authority over its resources since its independence has also been maintained and expanded, and in 1980s the State classified over 75% of the total land area as State Forest, including over 90% of the Outer Islands. (8) Given this pattern of State control of land and resources, local communities are often vulnerable to losing access to their traditionally occupied lands or resources, and thus to their means of sustenance, way of life, and culture.
This article addresses two related human rights norms that are emerging to counteract pressures being placed on vulnerable communities. The first of these is Community-Based Property Rights, which relate to the rights of long-established communities, especially indigenous ones, to manage and control natural resources they have traditionally utilized, and to maintain and adapt their often complex community rules and norms. The second is Prior Informed Consent by indigenous and other local communities with respect to the use of natural resources that they reside in or upon which they are otherwise dependent.
Before describing these concepts, it is helpful first to recall the legal context in which these norms are emerging. …