Inclusive international law and governance and a shared ethical framework are needed to sustain both people and the planet.
WORDS AND IMAGES Nigel Crawhall
“The forest is our school, and our ancestors are our teachers.”
— Papa Nze, Baka Elder, Zangaville, Gabon
Global assessments such as the one produced in 2019 by the Intergovernmental Platform on Biodiversity and Ecosystems Services (IPBES), an independent body that advises United Nations member states, tell us that the dominant pathway to economic development has placed life on earth in jeopardy due to radical loss of biodiversity and intensification of climate instability. As a non-Indigenous person who was raised in the Western legal and ethical tradition and has been a witness to diverse voices, practices, and traditions in other contexts, I pose the question of what kind of shared ethical framework needs to emerge through intercultural dialogue to sustain a form of inclusive international law and governance that can meet the needs of both people and the planet.
One of the primary obstacles that arose in building consensus on the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was related to the concept of “collective rights.” A number of Western countries objected to this concept, which is integral to cultural and legal traditions in various parts of the developing world and widespread among Indigenous Peoples. The adoption of the UNDRIP, however, opened avenues to better understand how different legal heritages, including customary laws and practices, might find a new place within a global framework of rights, governance, and development.
‘Collective rights’ are integral to cultural and legal traditions in various parts of the developing world and widespread among Indigenous Peoples.
Challenging the hegemony of the Western liberal democratic tradition, UNDRIP brought into focus a critique of that historical legacy and unveiled legal and ethical traditions from other parts of the world, which articulate diverse ways of understanding rights and responsibilities — not only in the relationship between individuals, communities, and regions of the world but also in the relationship between humans and other living beings. Indigenous and especially animist belief systems attribute agency and intelligence to Mother Earth (or Pachamama), trees, forests, other plant and animal species, water bodies, and a variety of other physical and metaphysical entities, whether visible or otherwise, such as sacred landscapes.
Numerous African and Asian writers propose critiques of the Western tradition of human rights, aiming to expose hidden constraints and biases that need to be addressed if human rights are going to result in a global commitment and inspire cooperation, equity, and peace. Critiques from the South tend to highlight how certain aspects of the prevailing human rights discourse are overly state-centric and implicitly Euro-centric in character.
Diverse authors from developing countries, living in post-colonial contexts, draw on a common experience of societies that emphasize social solidarity — ones in which there is a weave of rights and duties in relation to family, community, and society and where humans stand in a reciprocal relationship with other species, landscapes, and seascapes, and even with manifold expressions of divinity, sacrality, and spirit. There are many expressions of these cultural relationships between species, captured for example in a phrase in Te Reo Māori (the Māori language): Ko ahau te tohorā, te tohorā ko ahau (I am the whale, the whale is me).
‘The enjoyment of rights and freedoms also implies the performance of duties on the part of everyone.’
Collective rights were codified in African law decades before the UN General Assembly considered the UNDRIP. The preamble to the African Charter on Human and Peoples’ Rights (ACHPR) of 1981 considers that “the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone.” The ACHPR goes on to elaborate the notion that the rights of the individual are located within a framework of duties to the collective:
1. Every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community.
2. The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.
In her 2020 book Decolonization and Afro-Feminism, Ugandan writer Sylvia Tamale advocates for an African approach to human rights that is rooted in the continent’s diverse cultures and traditions and emphasizes the need for decolonizing human rights discourse. She argues that the Western tradition of human rights emerged from the interests of elites and took center stage during a period of changes that promoted a state-centric model of governance while de-emphasizing feudal and monarchic traditions. The individual freedoms and rights framework, she contends, allowed Western powers to uphold legal principles of equality and rights of its own citizens and new elites while proceeding to colonize other polities in the South and also to disenfranchise and even dehumanize Indigenous Peoples.
The Western tradition of human rights emerged from the interests of elites.
Questioning the power imbalance implied in who gets to define human rights, Tamale calls for a deconstruction and decolonization of the concept. At the same time, she proposes a more inclusive, context-specific, and multicentric approach to human rights that acknowledges the diverse cultural, social, and political realities of the African continent in particular and seeks to empower non-dominant people and communities in the process.
Indigenous Peoples’ worldviews add another layer to this analysis, suggesting that we should open our minds to an even greater transformation of our understanding of rights and responsibilities. Indigenous Peoples have proposed paradigms that speak of liberating customary law from its colonial stigmatization, bringing diverse local, national, and regional traditions back onto the world stage in an effort to find a lasting reconciliation among human beings and reconfigure our relationship to the living world.
In September 2009, I had the opportunity to co-facilitate a workshop on reducing emissions from deforestation and degradation (REDD+) with Indigenous Peoples from different parts of Gabon in Central Africa. Gabon has some of the best-conserved equatorial forest cover in the world, and there are several Indigenous Peoples living substantially off wild forest resources in remote parts of the country. We had met with the different communities in their home villages at an earlier date. When the Indigenous representatives gathered in Libreville, Gabon’s capital, we needed to work through several languages so that the Elders and other community members present could fully understand the scientific and policy explanations that were being shared with them. Most of the Elders were illiterate in a Western sense of the word, while displaying an extraordinarily detailed knowledge of the forest and a unique oral expertise regarding biodiversity and governance.
The Baka Elders from the north of Gabon asked us to repeat again with translation how greenhouse gas emissions from fossil fuels, particularly emanating from urban centers, were driving changes in the climate and causing global warming as well as environmental instability. The Elders were in agreement that urban areas are hotter than the rainforest in which they live. What concerned them was who was responsible for disturbing the natural order. The Baka participants explained that they had been observing numerous changes in the forest: changes in temperature, rainfall, plants, and animals. They were convinced that the forest was disturbed and that they were responsible for restoring balance. They had undertaken a series of rituals to help the forest regain its equilibrium. I was struck by how the Baka Elders assumed that they had a responsibility toward the forest, that the well-being of their environment was something personal, built on a sense of reciprocity and a holistic appreciation of life. While not causing climate change, the Baka saw themselves as having duties to nature, expressed through a collective lens and cosmovision.
In my years of working with Indigenous Peoples around Africa, I learned that each community organizes itself differently, depending in part on how it is shaped by the relative abundance of biodiversity and the pressure that population places on the carrying capacity of the landscape. Community-based participatory mapping helped me understand that each society evolves a customary tenure system, which creates a set of rights and responsibilities — between individuals, between families or clans, between communities — which is their framework for protecting biodiversity within the communal territory. In various participatory mapping projects, what emerged is that the concepts of rights and reciprocity of duties are intimately related and dynamic, lying at the core of sustainable management and governance in human societies where there is a direct reliance on nature.
The concepts of rights and reciprocity of duties are intimately related and dynamic, lying at the core of sustainable management and governance in human societies where there is a direct reliance on nature.
As Sylvia Tamale has argued, ethical and governance practices are diverse, context-specific, and based on principles of equity and adaptability. One example, drawn from my own field experience, concerns hunting rights. In the Congo basin, Indigenous Peoples recount how they allow hunters from neighboring families to cross into their territory while pursuing game. It is only when the forest is showing signs of distress — for example, when a species is in danger — that the family associated with the territory may close it off for any hunting, a decision that neighbors respect. In contrast, among the Ogiek in the Mau Forest escarpment in Kenya, who were traditionally vertical nomads, when a hunter crosses a family boundary, the hunt may proceed but a specific portion of the meat will go to the custodian family. In the Kalahari, San Elders recall that if a hunt crosses a family boundary, the hunter should approach the custodians first, ask for their permission, and then pursue the hunt if permitted. Again, a portion of the meat is shared.
Traditional systems that encode the rights of users, reciprocity between parts of the community, and reverence for the species and the living natural system in which the community is located are not found only among Indigenous Peoples. In Finland, for instance, the kalastuskunta is a traditional community-based regulatory body for fishing rights. Lakes or parts of lakes are governed by a community body that determines fishing licenses and quotas on catches. During the twentieth century, kalastuskunta played a key role in holding government and industry accountable for the health of Finland’s freshwater biodiversity. These governance entities exist in parallel to municipalities and are recognized by the national government. As a result, Finland has some of the best-conserved freshwater biodiversity in Europe. The system centers on providing rights to fishers, while constraining overexploitation according to social norms and balancing reciprocal rights and duties between users.
The rules of community-based resource use are complex and interlocking. They are built into cultural systems and customary laws, articulated through local languages, and governed by Indigenous and local institutions. Overall, their function is to sustain biodiversity over the long term, while assuring that an equitable rights-based system is upheld, overexploitation is discouraged, and reciprocity is achieved along several dimensions. We witness reciprocity between humans and nature, between clans, families, and neighbors, and across generations. And, as the Baka explain, there is a spiritual dimension to this observance of rights and reciprocity: the forest is sentient and ethics are intrinsic.
This spiritual dimension of rights and reciprocity is not limited to rural Indigenous and local communities and their cosmovisions. In his 2009 book Tread Lightly on the Earth, distinguished international jurist Sri Lankabhimanya Weeramantry analyzes evidence that all the major world religions contain specific scriptural obligations for followers to value, respect, and protect nature. These obligations range from conservation of specific species to larger-scale conservation of landscapes and natural resources.
All the major world religions contain specific scriptural obligations for followers to value, respect, and protect nature.
Weeramantry proposes that duties to respect nature were normal in all cultures but became marginalized during the phase of colonial economic development and industrialization. Natural law, he contends, once included laws that mediated the relationship between people in terms of both rights and duties, while also extending to people’s relationship with nature. He further argues that natural law became distorted to enable overuse of resources by the powerful at the expense of the poor. He suggests that part of the work of jurists and environmental advocates is to restore a universal framework of respect for nature in both law and religion, putting “nature” back into natural law and then applying this in an evolving jurisprudence.
While visiting the Islander Center in Anuradhapura, Sri Lanka, I had a chance to discuss this topic with Reverend Jegatheesan Kurrukal, who has been part of an interfaith initiative to restore forest biodiversity and sustainable living. When asked about the drivers of climate change and what can be done, he provided a Hindu perspective. His view was that humans, as creative beings, draw on the energy of the fire chakra (manipura chakra) to continually invent new things, to forge new paths for material well-being. However, the fire chakra has different dimensions: it is a place of creativity but can also veer into uncontrolled desire and consumption; if overused or applied unskillfully, it causes us to burn that which we create.
Yogic teachings require humans to balance their behavior. The fire of our creativity and our materialist desires are to be tempered by working with other elements — earth, water, love, truth, wisdom — and by ultimately understanding the divine element within us, that which links and sustains the universe through all its permutations. We have a right to creativity and “development,” while being invited to approach this right through ethical teachings and inner balance, whereby our desires do not push ahead of our wisdom and the connection to the other elements that are necessary for sustainability.
At the fifteenth Conference of the Parties to the UN Convention on Biological Diversity (COP 15) in December 2022, governments opted to renew their commitment to the Joint Programme of Work on the Links between Biological and Cultural Diversity, established at COP 10 in 2010. The Joint Programme will be promoted by the Secretariat of the Convention on Biological Diversity, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Union for Conservation of Nature (IUCN), and other entities. This decision comes along with a more robust engagement in ensuring the participation, rights, and knowledge of Indigenous Peoples specifically, as well as a greater range of other non-state actors, rights holders, and knowledge holders. The outcome document is known as the Kunming-Montreal Global Biodiversity Framework, and it is now one of the most important multilateral frameworks for changing our relationship with nature and future generations.
The combination of the UN Framework Convention on Climate Change (UNFCCC) Paris Agreement and the Kunming-Montreal Global Biodiversity Framework suggests a shift in what is understood by rights, responsibilities, and relationships — with one another, with the past, with the future, and with the living world. The interactions of diverse peoples, diverse belief systems, and diverse levels of understanding of nature are perhaps generating what Sri Weeramantry had envisioned, both in terms of international law and of a reawakening of customary laws.
The ratification of the United Nations Universal Declaration of Human Rights in 1948 was a historic moment for humanity. It provided a new counter-balance to the principle of national sovereignty, founding a new multilateral system on a concept bigger than the sum of the parts. It also supported the process of decolonization at a global scale. We now find ourselves in an era of unprecedented change and even precarity, where different rights holders and constituencies are turning their attention to advancing new frameworks of rights, duties, and reciprocity that go beyond individual rights and anthropocentrism. At a time when the urgency of addressing our relationship with nature and the rest of the living world has become evident to most people, the table of multilateralism could be expanded to include greater human diversity.
An effective use of these multilateral frameworks, in combination with the unique opportunity presented by the International Decade of Indigenous Languages, might bring some profound changes in how we speak to one another, frame our ideas, and forge new paths to reconciliation. There is an opportunity to recalibrate the global system and potentially move humanity away from its extractive impulses toward a new phase of custodianship for the common good, anchored in adaptive and dynamic knowledge systems, with governance informed by both ethics and ecological principles.
Disclaimer: The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city, or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. The ideas and opinions expressed in this publication are those of the author; they may not be those of UNESCO and do not commit the organization.
Nigel Crawhall is a South African sociolinguist, working with Indigenous Peoples and local communities on knowledge systems of climate and biodiversity. He is currently the Chief of Section for the Local and Indigenous Knowledge Systems program at UNESCO.