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Legal Processes

Several international legal instruments recognize various dimensions of the rights of indigenous peoples and local fishing communities (men and women), as evident in the following indicative compilation: (click for complete text)

  • Protecting customary use of resources
    Article 10 (c) of the Convention of Biological Diversity (CBD) calls on States to protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements. Similarly, while Article III.5 of the Convention on the Conservation of Migratory Species of Wild Animals (CMS or the Bonn Convention) prohibits the taking of species under Appendix I, Article III.5 (c) notes that exceptions may be made if the taking is to accommodate the needs of traditional subsistence users of such species. The term "management" as used in the CMS includes sustainable use and, therefore, traditional hunting practices, of special importance for indigenous peoples, are allowed under this Convention, subject to conditions of sustainability. Article 7.6.6 of the FAO Code of Conduct for Responsible Fisheries (CCRF), highlights the need to recognize traditional practices, needs and interests of indigenous people and local fishing communities highly dependent on fishery resources for their livelihood.
  • Respecting, maintaining and promoting traditional knowledge/ practices
    Article 8(j) of the CBD recognizes the need to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity, and to promote their wider application. The need to encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices, is also highlighted. Section 17.74 b, Agenda 21, emphasizes that States must take into account the traditional knowledge and interests of local communities, small-scale artisanal fisheries and indigenous people in development and management programmes. Article 6.4 of the CCRF stresses the need to take conservation and management decisions for fisheries, based on the best scientific evidence available, also taking into account traditional knowledge of the resources and their habitat, as well as relevant environmental, economic and social factors. The need to investigate and document traditional fisheries knowledge and technologies, in particular those applied to small-scale fisheries, in order to assess their application to sustainable fisheries conservation, management and development, is highlighted in Article 12.12 of the CCRF.
  • Stressing participatory approaches to management/ conservation
    The need for full and effective participation of indigenous and local communities is recognized by several international legal instruments dealing with conservation of coastal and marine resources, including the CBD, the CCRF, Agenda 21 and the Ramsar Convention. For example, Programme Element 2 on Governance, participation, equity and benefit sharing, under the Programme of Work in Protected Areas (COP7, Kuala Lumpur, 2004) of the CBD, emphasizes the full and effective participation of local and indigenous communities in protected area management. Article 10.1.2 of the CCRF stresses that, in view of the multiple uses of the coastal area, States should ensure that representatives of the fisheries sector and fishing communities are consulted in the decision-making processes, and are involved in other activities related to coastal area management planning and development.  Article 14 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) ask States to take all appropriate measures to ensure that rural women participate in, and benefit from, rural development and, in particular, to ensure that women have the right to participate in the elaboration and implementation of development planning at all levels.
  • Recognizing role of communities in conservation/ community conserved areas
    The above-mentioned Programme Element 2 on Governance, participation, equity asks States to recognize and promote a broad set of protected area governance types, including areas conserved by indigenous and local communities, using legal and/or policy, financial and community mechanisms. Resolution VII.8 (COP7, San Jose, 1999) under the Ramsar Convention on "Local communities and indigenous people" refers to ILO's Convention C169 concerning Indigenous People and Tribal Peoples in independent countries as well as to the fact that in many contexts, indigenous people and local communities are already involved in managing and using wetlands sustainably, and have long-standing rights, ancestral values, and traditional knowledge and institutions associated with their use of wetlands. The Resolution adopted, as an Annex, the Guidelines for establishing and strengthening local communities' and indigenous people's participation in the management of wetlands. The guidelines emphasize the need to encourage active and informed participation, and the assumption of responsibility, by local communities and indigenous people in the management of Ramsar-listed sites and other wetlands and the implementation of the wise-use principles at the local, watershed, and national levels. Resolution IX. 4 asks States to systematically collect ecological and socio-economic data including on artisanal fisheries and aquaculture and highlights the importance of participatory management for conservation and sustainable of fisheries resources.
  • Supporting small-scale fisheries and fishworkers
    Agenda 21, Section 17.81 asks coastal States to support the sustainability of small-scale artisanal fisheries by integrating small-scale artisanal fisheries development into marine and coastal planning as well as by recognizing the rights of small-scale fishworkers. Section 17.94 asks States to provide support to local fishing communities, in particular those that rely on fishing for subsistence, indigenous people and women, including, as appropriate, the technical and financial assistance to organize, maintain, exchange and improve traditional knowledge of marine living resources and fishing techniques, and upgrade knowledge on marine ecosystems. Article 24. 2 (b) of the United Nations Fish Stock Agreement (UNFSA) requires States to avoid adverse impacts on, and ensure access to, fisheries by subsistence, small-scale and artisanal fishers and women fishworkers, as well as indigenous people in developing States, while adopting conservation and management measures for straddling and highly migratory fish stocks.
  • Recognizing rights of indigenous people to traditionally-owned lands, territories and resources
    Article 26 of the recently adopted United Nations Declaration on the Rights of Indigenous Peoples, among other things, recognizes the rights of indigenous peoples to traditionally-owned lands, territories and resources and asks States to give legal recognition and protection to these lands, territories and resources, with due respect to the customs, traditions and land tenure systems of indigenous peoples concerned.
    Recognizing preferential access rights of small-scale fishers to traditional fishing grounds: Article 6.18 of the CCRF stresses the need to protect the rights of fishers and fishworkers, particularly those engaged in subsistence, small-scale and artisanal fisheries, to a secure and just livelihood, as well as preferential access, where appropriate, to traditional fishing grounds and resources in the waters under their national jurisdiction. Notably, in the Basic Principles in Annex I on the Elaborated Programme of Work On Marine and Coastal Biological Diversity, under Decision VII/5 (COP7, Kuala Lumpur, 2004) of the CBD, specific reference is made to Article 6.18 of the CCRF.
  • Contributing to poverty alleviation
    States agreed to eradicate extreme poverty and hunger by halving, between 1990 and 2015, the proportion of population below $1 (PPP) per day, when they adopted the Millennium Development Goals (MDGs) in 2000. The Basic Principles in Annex I on the Elaborated Programme of Work On Marine and Coastal Biological Diversity, under Decision VII/5 (COP7, Kuala Lumpur, 2004), CBD, specifies that this programme of work aims to make a direct contribution to poverty alleviation, in accordance with the Millennium Development Goals.