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Indigenous Peoples and Climate Justice A Critical Analysis of International Human Rights Law and Governance Giada Giacomini Full Chapter PDF
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ENERGY, CLIMATE AND THE ENVIRONMENT
Indigenous Peoples
and Climate Justice
A Critical Analysis of
International Human
Rights Law and Governance
Giada Giacomini
Energy, Climate and the Environment
Series Editors
David Elliott
The Open University
Milton Keynes, UK
Geoffrey Wood
School of Law
University of Stirling
Stirling, UK
The aim of this series is to provide texts which lay out the technical,
environmental and political issues relating to proposed policies for
responding to climate change. The focus is not primarily on the science
of climate change, or on the technological detail, although there will be
accounts of this, to aid assessment of the viability of various options.
However, the main focus is the policy conflicts over which strategy to
pursue. The series adopts a critical approach and attempts to identify
flaws in emerging policies, propositions and assertions. In particular, it
seeks to illuminate counter-intuitive assessments, conclusions and new
perspectives. The intention is not simply to map the debates, but to
explore their structure, their underlying assumptions and their limita-
tions. The books in this series are incisive and authoritative sources of
critical analysis and commentary, clearly indicating the divergent views
that have emerged whilst also identifying the shortcomings of such views.
The series does not simply provide an overview, but also offers policy
prescriptions.
Giada Giacomini
Indigenous Peoples
and Climate Justice
A Critical Analysis of International
Human Rights Law and Governance
Giada Giacomini
Department of Political Science
Sapienza University of Rome
Rome, Italy
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature
Switzerland AG 2022
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Foreword
a time, all the objecting States have withdrawn their vote against the
Declaration. As a result, in conformity with the case-law of the
International Court of Justice, today the Declaration on the Rights of
Indigenous Peoples, as no longer contested by any state, reflects, until
proven otherwise, international customary law obligations.
Almost a century has passed since 1923, when the Iroquois Indian
leader Deskaheh went to Geneva, to the League of Nations, in the roman-
tic and illusory attempt to have the Confederation of the Iroquois Six
Nations accepted as a member of the organization. And today we can
affirm that this century has not passed in vain, as it will clearly emerge
from the present book. In fact, this book does not limit itself to analysing
the normative and legal dynamics in existence, but it tries to verify their
concrete effectiveness in the light of the practical application, not least
the effects of climate change.
Such methodological approach is found not only in the aims and in
the very structure of the book but also and above all in the modalities of
the research conducted by the author who has alternated periods of study
at the most authoritative international academic institutions to fieldwork
among the Yanesha people in Peru. In short, the scientific data becomes
existential and vice versa. The identification of the researcher with the
object of the research, which, of course, also presents many risks that
must always be kept under control through a rigorous research method,
greatly expands the potential of the investigation, its ability to go beyond
conventional knowledge and to reveal new theoretical horizons. This bet,
full of unknowns and possibilities, has been accepted, perhaps even
unknowingly (as often happens among young researchers), but, and this
is the important fact, it has undoubtedly been won by the author.
In fact, unlike the academic literature of reference and perhaps even
these same introductory lines, the work of Dr Giacomini has the funda-
mental merit of looking at the rights of Indigent peoples in a completely
innovative perspective that enhances their ability to transform reality,
both locally and globally. The author does not look at the past in an
excessively remedial perspective, nor she looks at the future in a cata-
strophic key. Yet, she highlights such struggle in an historical present that
is being repeated for hundreds of years. Indigenous peoples are consid-
ered not so much as predestined victims of Western capitalism in the
Foreword vii
environmental and human rights law is two-sided (in the sense that the
protection of human rights is enriched and deepened by the environmen-
tal dimension), not to mention “creative” and “transformative” in a jurid-
ical sense. Moreover, it is demonstrated, inter alia, by the very recent and
ultra-innovative positions of the Parliamentary Assembly of the Council
of Europe and the United Nations Human Rights Council on the affir-
mation of a right “to a safe, clean, healthy and sustainable environment”.
This right, far from the “right to a healthy and satisfying environment”,
object of criticism for its derivation from an anthropogenic vision of the
relationship between man and nature, is characterized by its collective
and intergenerational dimensions which the Western juridical culture
could not even have imagined without the essential contribution to the
Indigenous cosmovision to the conceptualization of such dimensions.
The second line of critical and prospective reflection emerging from
the book is the result of the study of both complex and articulated
Indigenous phenomenology. It focuses on the response that the interna-
tional community should give to the announced global catastrophe
induced by climate change. While it is clear that international efforts to
achieve a limitation of harmful emissions have been delayed and that they
are, at present, totally inadequate, this finding must not lead to hasty
conclusions, dictated by chronic pessimism, in the sense of adherence to
a security approach to climate change or the construction of increasingly
impenetrable barriers to prevent the invasion of the feared, uncontrolled
and growing flows of environmental refugees.
As Indigenous peoples teach us as survivors of America’s post-discovery
genocidal capitalism in all its manifestations and evolutions, the united
and shared response of the international community must be based on
continuous adaptation to the effects of climate change, within the frame-
work of the core principles of “climate justice” and “common but differ-
entiated responsibility”.
After all, Beck himself, shortly before his untimely death, has theorized
that from the epochal changes introduced by Anthropocene can derive
some “emancipatory effects”.1 More specifically, the “anthropological
1
U. Beck, Emancipatory Catastrophism: What Does it Mean to Climate Change and Risk Society?,
in Current Sociology, vol. 63(1), p. 75 ss.
Foreword ix
This book is the result of long and careful research started at Sapienza
University of Rome, Department of Political Science, and at the
Strathclyde Centre for Environmental Law and Governance in Glasgow
(SCELG), UK. I would like to express my deepest gratitude to these two
research centres, for having guided me through the research path pre-
sented in this manuscript.
I also would like to express my gratitude to the professors, academics
and practitioners that followed and provided feedback on my work:
First, to Prof. Raffaele Cadin from La Sapienza University of Rome
and Dr Saskia Vermeylen from SCELG, for having supported me since
the very beginning of my PhD studies, and second, to Dr Geoffrey Wood
from University of Stirling for having endorsed my work since the com-
pletion of my PhD. I would like to thank also the Global Ecological
Integrity Group, in particular Prof. Kathryn Gwiazdon, from
Environmental Ethics and Law, and Prof. Klaus Bosselmann, from the
University of Auckland, for having inspired my work through meaning-
ful dialogue. Moreover, I am grateful to the NGO Chirapaq for having
hosted me back in the times of my PhD research. I also want to thank
Prof. Annalisa Savaresi, from the University of Eastern Finland, and Dr
Lalanath de Silva and all the team members at the Independent Redress
xi
xii Acknowledgements
1 I ntroduction 1
Setting Up the Scene: An International Perspective 1
Book Methodology 11
Community Research Methodology 16
Outline of the Book 20
References 24
2 Climate
Justice as an Interpretative Approach 27
Introduction 27
The Notion of Climate Justice 28
Indigenous Climate Justice 28
Distribution, Recognition and Participation as a Justice
Discourse 36
Capabilities Approach, Human Rights and Justice 44
Decolonial Theories 51
Recognition of Customary Law and Indigenous
Knowledge: Same Old (Neo-)Colonial Story? 54
Indigenous Peoples, Climate Change and Colonialism 63
Rethinking Vulnerability 63
Contextualizing Climate Change and Colonialism: The
Yanesha Peoples of the Palcazu Valley in Peru 71
xiii
xiv Contents
Conclusion 89
References 89
3 The
International Legal Framework: Human Rights and
Climate Change107
Introduction 107
Human Rights-Based Approaches to Climate Change 108
The Paradox and the Inclusive Promise of Human Rights-
Based Approaches to Climate Change 108
Human Rights, Climate Change and International Law 114
Substantive Rights, Procedural and Participatory Rights and
Related Challenges 124
Environmental Rights and Climate Change 133
Indivisibility of Human Rights and the Environment: The
Right to a Healthy Environment 133
Climate Change and the Right to Life, Food, Health, Water
and Other Fundamental Rights: An Issue of Justice 140
Right to Life 142
Right to Food 144
Right to Health 145
Right to Water 146
Other Human Rights at Stake 147
Conclusion 152
References 153
4 Indigenous
Peoples in International Law and Governance159
Introduction 159
The International Protection of Indigenous Peoples’ Rights 160
Political Doctrines of Colonization and Decolonization
Adopted Within International Law 160
Individual and Collective Rights 172
Indigenous Peoples and International Human Rights Law 178
Human Rights Dimensions of Environmental Law 191
Jurisprudence of International Courts 196
The Participation of Indigenous Peoples in International Fora 205
Participation from Local to Global 205
Contents xv
5 Participatory
Rights, Conservation and Indigenous
Customary Law235
Introduction 235
Right to Consultation and to FPIC 236
Differences Between Consultation and Consent: Two
Different Standards in International Law? 236
Consent, Traditional Knowledge and Benefit-Sharing 254
Indigenous Critiques and Guidelines to the
Operationalization of FPIC 262
Climate Finance, Participation and Redress: The
Independent Redress Mechanism of the Green Climate
Fund and the Peruvian Project 266
The Enforcement of Consent Procedures in National
Legislation: Example from Peru 279
Biodiversity Conservation, Emissions Reductions and
Indigenous Customary Law 295
REDD+, Conservation and Commodification of Forests 295
Indigenous and Community Conserved Areas 301
The Status of Indigenous Customary Law 310
Conclusion 315
References 317
6 Climate
Change and Litigation: Human Rights as a Tool
for Climate Justice323
Introduction 323
Climate Litigation and Indigenous Peoples 323
Conceptualizing and Quantifying Climate Litigation 324
Types of Liability and the Potential for a Human Rights-
Based Approach in Climate Litigation 332
Indigenous Peoples in Climate Litigation 340
xvi Contents
Conclusion 355
References 356
7 Beyond
the Human Rights-Based Approach: Rights of
Nature and Ecological Integrity361
Introduction 361
Earth Jurisprudence as a Systemic and Epistemic Alternative
in the Climate Change Context 362
Not Only Human Rights: Indigenous Cosmovision and
Rights of Nature 367
Critical Aspects of Rights of Nature vis-a-vis Indigenous
Anthropomorphism 369
Rights of Nature in Law and Governance 374
Rights of Nature in Global Environmental Litigation 381
The Right of Ecological Integrity: A Way Forward Through a
Non-centredness Theory 389
Conclusion 395
References 397
8 C
onclusion403
Achieving Climate Justice Within a World of Coloniality 403
Ways Forward and Future Avenues for Research 408
I ndex411
A
ppendix413
Abbreviations
xvii
xviii Abbreviations
xxi
1
Introduction
1
See also Cultural Survival website at https://www.culturalsurvival.org/news/indigenous-peoples-sue-
bolsonaro-hague-genocide-and-get-ready-mass-mobilizations-brazil, last accessed September 2022.
1 Introduction 3
2
For more information on this case, consult the International Rights of Nature Tribunal at https://
www.rightsofnaturetribunal.org/tribunals/glasgow-tribunal-2021/, last accessed September 2022.
3
The Glasgow Pact calls for a phase-down of coal, and phase-out of fossil fuels. This is the first time
that coal has been explicitly mentioned in any COP decision. However, the final wording of the
pact was forced by a group of countries led by India and China, advocating for the use of “phase-
down” instead of “phase-out”. The initial language on this provision was much more direct. It
called on all parties to accelerate phase-out of coal and fossil fuel subsidies. Despite the less direct
language, the inclusion of language on reduction of coal power is being seen as a significant move-
ment forward (Sinha, 2021).
4
Glasgow Climate Pact, FCCC/PA/CMA/2021/L.16, November 2021.
4 G. Giacomini
and what are the inherent flaws in the international legal system for what
concerns human rights, climate change and the environment.
The present work aims at demonstrating that there still are several gaps
in both international law and practices aimed at the protection of
Indigenous peoples’ rights when it comes to climate change governance.
The book aims at doing so through a twofold process. On the one hand,
it adopts a climate justice perspective that highlights current problemat-
ics in addressing climate change and Indigenous participation in law-
drafting and environmental governance. On the other hand, it highlights
that these problematics are inherent to the very structure of the contem-
porary human rights systems from a critical legal perspective. The quest
for justice is still ongoing and much needs to be done for an authentic
realization in practice of a legally pluralistic society where Indigenous
peoples’ cosmovision are part of the legal system alongside Westernized
legal approaches.5 Such realization requires Westernized legal systems to
take a step back in order to realize a paradigmatic shift in environmental
law, where humankind is conceptualized as an existential continuum
with the other natural elements.
This work wishes not only to confirm the legal validity of the current
achievements of international law to address Indigenous peoples’ issues
but also to suggest new ways forward to tackle current challenges in the
climate change context and in international human rights law. The inter-
pretation through critical legal thinking of climate change and human
rights as an issue of justice is central if we want to challenge the current
biodiversity and climate crisis. A justice interpretation of climate change
5
Cosmovision refers, in general terms, to the worldview of a human group as a key concept for
understanding otherness and delving into diversity between cultures. The cosmovision of a people
is a structured vision in which the members of a community coherently combine their notions
about the environment in which they live and about the cosmos in which they place human life.
This world view represents one of the elements that identify each community and that manifest
themselves through a set of beliefs, customs and traditions handed down by their ancestors that
make up their own culture. In Indigenous cosmovision, the human being is not the centre of the
universe but symbolizes just an element of the necessary balance with Mother Nature. However,
each Indigenous people have their own cosmovision: consequently, it is understood that there is not
a single Indigenous cosmovision but that there are different cosmovision belonging to each
Indigenous people. However, some common principles governing Indigenous cosmovision have
been identified. Among them, the sacredness of the territories, the extreme relevance of spirituality
and the conception that all elements of the world have life stand out (Reguart Segarra, 2021,
pp. 70–72).
1 Introduction 5
Book Methodology
Conducting research on issues that regard, directly or indirectly,
Indigenous peoples requires cultural sensitivity, care and attention.
Indigenous peoples have traditionally been at the centre of research that
wanted to fragment, use and reproduce their knowledge in order to gain
some advantage, framed as innovation, research advancement or a benefit
for all humanity. It is obvious, then, that Indigenous peoples have built
mistrust towards researchers and practitioners, also because research is
generally conducted following Westernized standards and conceptualiza-
tions, leaving no space for Indigenous standards for doing research.
Universities and research institutes are not exonerated from the
Westernized colonization and influence. Power is also administered
through research and education, and scholars need to be aware of the
message they are—indirectly—carrying with them when pursuing their
research objectives, especially when conducting community-related work.
Indigenous peoples have been quite vocal that they are not so content
that Western researchers take inspiration from them and their social and
environmental movements without taking into account and respecting
their holistic relationship with nature. The question here, in my opinion,
is if we—Western scholars and practitioners—have the actual capacity to
understand such differences in ethical ontologies, if we are committed to
trying to switch our epistemological paradigm in order to embrace a dif-
ferent perception of the relationship between humankind and nature.
This question is complicated, and this is the reason why through this
book, I wish to challenge the hegemonic, Western ideas of environmental
and human rights law.
For these and related reasons, the first thing I had in mind when writ-
ing this book was to create something that could be useful for advocating
Indigenous peoples’ rights within the current legal paradigm.
Unfortunately, as demonstrated in this book, the Westernized way (e.g.
litigation) is the main resources available at the moment to pursue
12 G. Giacomini
6
However, other important initiatives such as the International Rights of Nature Tribunal are
emerging. For more information on the past processes footnote 2.
7
This is because even an Indigenous researcher can adopt Western methods to conduct research. As
a consequence of colonization, perpetrated by European nations before, and settler states after,
Westernized education is the prevailing method in schools and universities.
1 Introduction 13
2015; Apaydin, 2017). Thus, the focus of this book rests predominantly
within international human rights law and human rights aspects present
in international environmental law.
13
Chirapaq, Chirapaq y el pueblo yanesha ratifican alianza, 2018, available at chirapaq.org.pe.
14
Chirapaq, Yanesha women revive traditional dyeing with innovative designs, at chirapaq.org.pe.
1 Introduction 19
15
A full list of communities is available on the Oxapampa province website, at peru.gob.pe.
20 G. Giacomini
Chapter 3 is centred around the first legal cluster that the book analy-
ses in a critical perspective. This chapter focuses on the interaction
between climate change and human rights by taking into consideration
critical legal approaches on the conceptualization of human rights. It
then focuses on the challenges related to substantive rights, participatory
and procedural rights in climate change governance. It then delves into
the conceptualization of specific environmental rights—for example, the
right to a healthy environment, that are also relevant for climate change
impacts, considering how such impacts are the indirect cause of human
rights violations.
Chapter 4 is specifically dedicated to the protection of the right of
Indigenous peoples in international law and governance, with a particu-
lar stress on the participation of Indigenous peoples in climate change-
related fora. International law is analysed through the lenses of how
doctrinal of colonization and decolonization have shaped norms and
behaviours and addresses the important difference between what consti-
tute individual rights vis-a-vis collective rights. Indigenous peoples hold,
unlike other minorities, specific collective rights that are linked to their
peculiar ontologies and philosophies around property of ancestral lands
and environmental resources. The second part of the chapter revolves
around the dynamic of participation of Indigenous peoples in interna-
tional context, and it draws upon concrete examples of exclusion and
inclusion of Indigenous peoples in climate change and biodiversity
decision-making.
Chapter 5 delves deeply into participatory rights of Indigenous peo-
ples for what regards local decision-making, conservation governance and
Indigenous customary law and knowledge associated to genetic resources.
It aims at doing so by analysing two different legal frameworks: consulta-
tion and FPIC, and biodiversity conservation and the role of Indigenous
customary law. In this first part, the chapter points at the operationaliza-
tion of consultation and FPIC as key means to avoid injustices when it
comes to the use of genetic resources associated with Indigenous knowl-
edge, and to the implementation of green development projects in
Indigenous lands and territories. The chapter presents relevant examples
and case studies which focus on Peru, both for what regards consultation
law and practices and the role of climate finance in shaping projects that
1 Introduction 23
involve Indigenous peoples and their lands. It addresses the role of the
Independent Redress Mechanism (IRM) of the Green Climate Fund
(GCF) for the safeguard of Indigenous peoples in the case of disrespect of
consultation and FPIC procedures established in the GCF policy sector.
In the second part of the chapter are analysed issues concerning biodi-
versity conservation, the role ICCAs play in helping emissions reductions
and biodiversity conservation and the current status of Indigenous cus-
tomary law. Matters related to the REDD+ programme and the utiliza-
tion of forests and sacred lands to achieve emissions reductions objectives
are analysed in a critical perspective from the point of view of Indigenous
peoples.16 In fact, the classical conservation paradigm prescribes that
environmental conservation must be realized in the total absence of
human beings from forests or other natural areas. This approach has
resulted in the forces evictions of Indigenous peoples for conservation
objectives. However, this conservation paradigm is now changing, thanks
to other collaborative, participative approaches such as Indigenous and
Community Conserved Areas (ICCAs), geographically delimited spaces
where Indigenous knowledge and practices are part of the environmental
protection governance. Lastly, the chapter addresses issues of Indigenous
customary law and legal pluralism as the maximum embodiment of the
participatory parity in settler States’ law and governance.
Chapter 6 focuses on the strand of climate justice represented by access
to legal means in the case environmental human rights have been vio-
lated. It provides a description and conceptualization of climate litigation
as an instrument to achieve climate justice through redress of human
rights violations connected to negative impacts of climate change. This
chapter presents a focus on climate litigation related to Indigenous peo-
ples, evidencing potentialities and flaws of case law brought before inter-
national human rights courts and commissions in a climate justice
perspective.
Finally, Chap. 7 argues for the need of critically re-thinking human
rights-based approaches to climate change, by allowing a paradigmatic
16
The extended name of the programme is “Reducing emissions from deforestation and forest
degradation, and foster conservation, sustainable management of forests, and enhancement of for-
est carbon stocks”.
24 G. Giacomini
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modern legal consciousness, 1937-1941. Minnesota Law Review, 62, 265–339.
1 Introduction 25
Language: German
vom Verfasser.
Inhalt.
Seite
Erstes Kapitel. Die Türkei im Weltkrieg 1
Z w e i t e s K a p i t e l . Aleppo 8
D r i t t e s K a p i t e l . Eine mißglückte Autofahrt 18
V i e r t e s K a p i t e l . Mein neuer Feldzugsplan 36
F ü n f t e s K a p i t e l . Auf den Wellen des Euphrat 41
S e c h s t e s K a p i t e l . Unter Nomaden und armenischen
Flüchtlingen 52
S i e b e n t e s K a p i t e l . Deutsche Artillerie auf dem Wege nach
Bagdad 73
A c h t e s K a p i t e l . Im Reich der Palmen 83
N e u n t e s K a p i t e l . Mein Einzug in Bagdad 103
Z e h n t e s K a p i t e l . Bagdad einst und jetzt 118
E l f t e s K a p i t e l . Sommertage in „Dar-es-Salaam“ 145
Z w ö l f t e s K a p i t e l . Zwei Deutsche: von der Goltz und
Moltke 181
D r e i z e h n t e s K a p i t e l . Kut-el-Amara 191
V i e r z e h n t e s K a p i t e l . Meine Fahrt nach Babylon 211
F ü n f z e h n t e s K a p i t e l . Bibel und Babel 234
S e c h z e h n t e s K a p i t e l . Die Ruinen Babylons 247
S i e b z e h n t e s K a p i t e l . Eine deutsche Studierstube am
Euphrat 276
A c h t z e h n t e s K a p i t e l . Samarra, die Hauptstadt des Kalifen 284
Mutawakkil
Neunzehntes Kapitel. Die Karawane des Herzogs 300
Z w a n z i g s t e s K a p i t e l . Die Königsstadt Assur 314
E i n u n d z w a n z i g s t e s K a p i t e l . Erlebnisse auf einer
Etappenstraße 327
Z w e i u n d z w a n z i g s t e s K a p i t e l . Mosul 342
D r e i u n d z w a n z i g s t e s K a p i t e l . Ninive 364
V i e r u n d z w a n z i g s t e s K a p i t e l . Die Keilschrift und die
älteste Bibliothek der Welt 375
F ü n f u n d z w a n z i g s t e s K a p i t e l . Über Mardin zurück nach
Aleppo 385
S e c h s u n d z w a n z i g s t e s K a p i t e l . Assyrien und Babylonien 401
Türkische Soldaten auf dem Wege nach Nesibin, Mosul und Bagdad.
Erstes Kapitel.
Die Türkei im Weltkriege.
Stockholm, 7. Mai 1917.
Zweites Kapitel.
Aleppo.
A m 15. März 1916 war ich mit Graf Wichard von Wilamowitz-
Möllendorff, dem neuernannten Militärattaché der deutschen
Gesandtschaft in Persien, von Konstantinopel abgereist. Ein