If Mexico's widely hailed democratic transition is to be successful, it must serve as a framework for the resolution of the social and political conflict that has pitted the Zapatista National Liberation Army EZLN against the Mexican government since the beginning of When Vicente Fox was elected president in July , he declared that he would resolve the conflict, something his two predecessors had been unable to do, and as soon as he took power in December, he submitted a draft Indian Law to the Congress. This bill, also known as ley Cocopa, has a curious history. While the Zapatistas generally agreed with the bill, the PRI government did nothing about the proposal for four years. After much wrangling, a handful of deputies and senators agreed to receive them. By that time a number of indigenous organizations, as well as numerous other sectors of the civil society, had declared their support for the bill.

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This article argues that internal affairs namely, the EZLN armed indigenous uprising and the rise to power of the right-wing PAN party had much more influence on the reform of Article 2 of the Mexican Constitution in than did international law.

In effect, it points out the fact that although international treaties are legally binding, they do not always have effect on domestic legislation, as the latter may ignore or even contravene international regulations. In practical terms, this means that international law does not necessarily impact amendments made to national constitutions and laws. In reviewing the constitutional reform, we come to realize that this amendment had two major drawbacks.

First, it failed to comply with international norms, since specific provisions established in the CBD and C were not fully respected. Second, it established a series of provisions that fail to allow indigenous peoples to fully exercise their environmental rights in particular, access to natural resources.

Primero, no se tomaron en cuenta ciertas disposiciones internacionales del CDB y del C International Regulations under Indigenous Law. International Regulations under Environmental Law. Comments on the Content. Understanding the Origins. The Zapatistas and the Changing Political Scenario. Over the last few decades, indigenous environmental rights have been increasingly recognized in a diverse number of both "hard" and "soft" international instruments.

These rights have been mostly related to the environment, natural resources or issues linked to environmental matters. Many nations have adopted such standards and, as a result, amended their constitutions or modified their statutes to implement and further enhance environmental commitments toward indigenous peoples and communities.

International law, however, is not always the starting point for the development of domestic law i. Local conditions such as indigenous unrest, guerrilla movements or civil uprisings have also pushed many nations to create and implement regu lations.

Improved democratic processes, innovative ways of governance and renewed political scenarios have all contributed to reshape certain aspects of the legal system, all of which may have little bearing on the role played by the State in incorporating international norms into domestic law.

Indigenous environmental rights as established in Article 2 of the Mexican Constitution represent a good example of the foregoing. In fact, the existence of such rights in Mexico is not so much the result of international law as a consequence of deep internal socio-political changes.

After identifying international environmental rights of and obligations for indigenous peoples and their communities, this article argues that internal Mexican affairs had much greater influence on this constitutional reform than international law. It also highlights the fact that despite the influence of ratified international treaties on domestic law that is to say, once provisions become part of Mexican legislation and applied directly without any need for further incorporation , the amendment ignored their impact through vague, confusing and inadequate wording.

Although the Mexican Constitution and international treaties are designed to be complementary, some provisions, as well as the reform process itself, have actually contravened international standards, which means that international law does not necessarily effect the development of constitutional changes at the national level.

In reviewing the outcome of the constitutional reform, this article argues that this amendment had two major setbacks. First, it failed to comply with international norms as illustrated by the fact that certain provisions stated in the Convention Concerning Indigenous and Tribal Peoples in Independent Countries and the Convention on Biological Diversity were not taken fully into account. As a consequence, the Zapatistas, who were not part of the constitutional reform process, rejected outright the amendment.

At this point, no formal talks have been held between the EZLN and the Federal Government, and neither the Executive nor Legislative branch has shown any intention of seriously addressing, revising or proposing any reform to Article 2 of the Mexican Constitution. Environmental rights of and obligations for indigenous peoples and communities under international law can be divided into four distinct categories.

According to my own typology, such rights and obligations refer to i those that are explicitly related to the environment as a whole; ii those that refer to natural resources e.

All are implemented by means of diverse agreements, both legally and non-legally binding, that have been signed or adopted by governments through conventions, declarations and other international instruments either under environmental or indigenous law.

Strictly speaking, the phrase "indigenous environmental rights" was not consolidated as a concept until the 's. Before that time, environmental rights, on the one hand, and indigenous rights, on the other, pursuant to international agreements were not really intertwined. In fact, by the time the first international agreement that explicitly referring to indigenous rights was adopted the Convention Concerning Indigenous and Tribal Populations, also known as Convention of the International Labour Organization 1 the term "environment" had not yet acquired the meaning it currently has within international law.

Since the late 's and for many years afterward, "environmental rights" or "indigenous environmental rights" simply did not exist. It was not until the late 's and early 's that certain rights were termed "environmental" but still with no explicit reference to indigenous peoples as a result of emerging worldwide concern for preserving natural landscapes; taming pollution and negative health effects; preventing resource depletion; planning urban development; diminishing poverty, and so on.

In the long run, environmental and indigenous issues eventually converged due to forceful and growing claims that environmental protection at that time still under the umbrella of "conservation" was only feasible as long as indigenous peoples' interests referred to as "native peoples" were fully included in international debates and agreements.

We cannot accept to preserve fragile ecosystems while the native peoples who live in these areas are dispossessed and forcibly dislocated. This is the foundation of the emerging unity between native peoples and the international conservation movement. As ecologically-destructive megaprojects continue to penetrate the world's resource frontiers, the global problems of deforestation, desertification, depletion of fisheries and soil erosion are major concerns of both groups.

In December , the Secretary General of the United Nations called upon the Norwegian Prime Minister, Gro Harlem Brundtland, to establish and chair an independent commission to address major environmental challenges to the world community. The report stated:. The starting point for a just and humane policy for These groups' own institutions to regulate rights and obligations are crucial for maintaining the harmony with nature and the environmental awareness characteristic of the traditional way of life.

Hence the recognition of traditional rights must go hand in hand with measures to protect the local institutions that enforce responsibility in resource use. And this recognition must also give local communities a decisive voice in the decisions about resource use in their area.

As we shall see below, the Rio Conference, for some a "unique event in the annals of international affairs," 5 inserted environmental indigenous rights into discussions and texts of agreements signed at the conference. At the same time, the international community adopted the most all-encompassing treaty ever signed with respect to indigenous rights: the Convention Concerning Indigenous and Tribal Peoples in Independent Countries also known as the Indigenous and Tribal Peoples Convention, or Convention of the International Labour Organization or, simply, the C , which included references to environmental rights.

By the late 's, a consensus was reached at the global level that all nations should abide by international legal regulations based upon the intertwined development of environmental and indigenous issues. The two decades following these events, however, have helped elucidate a clear distinction between provisions passed under the guise of international indigenous law and those under international environmental law. Despite progress made in both these areas of law, we must consider that a greater number of ratified agreements have not in any way decreased the controversial nature of the environmental protection of indigenous peoples and international indigenous law, 6 both on a national and international level.

In fact, not all nations are even willing to ratify these types of instruments. When they do, they may fail to incorporate into their national legislation the full content of a treaty; or may deceptively and confusingly amend their constitutions and laws in ways that result in non-existent or ineffective implementation of indigenous environmental rights.

The most important legally-binding multilateral document under international indigenous law that refers to environmental issues, particularly in relation to rights, is the Convention Concerning Indigenous and Tribal Peoples in Independent Countries hereinafter referred to as "C". Following our indigenous environmental rights' categorization, this legally-binding instrument includes rights and obligations related to the environment and natural resources, as well as concepts and issues closely linked to environmental matters.

In a nutshell, these provisions include: 7. Article 4 1. Article 7 3. Article 7 4. Article 15 1. Article 15 2. Article 25 1. Article It is interesting to note that as of June , the majority of ratifications of the Indigenous and Tribal Peoples Convention has been by nations located in Latin America and the Caribbean region 15 out of The preamble recognizes not only the "urgent need to respect and promote the inherent rights of indigenous peoples Article 26 1.

Article 29 1. Article 31 1. Article 32 2. Given the fact that exclusion of indigenous peoples is a global concern and a matter of proven injustice, one of the biggest flaws of the Declaration is that it does not bind signatory-States.

Another notable albeit regional agreement is the Arctic Environmental Protection Strategy. Signed by eight countries Canada, Denmark, Finland, Iceland, Norway, Sweden, the then Union of Soviet Socialists Republics and the United States of America , this non-legally binding document seeks to protect the Arctic environment "and its sustainable and equitable development, while protecting the cultures of indigenous peoples.

One of the main reasons why this "soft law" i. In fact, this instrument was built in part upon initiatives already undertaken by indigenous peoples to protect the Arctic environment.

This said, two of the five main objectives refer explicitly to indigenous peoples:. Representatives of eight governments signed the Declaration on the Protection of the Arctic Environment on June 14 th , , which emphasized their "responsibility to protect and preserve the Arctic Environment" and recognized "the special relationship of the indigenous peoples and local populations to the Arctic and their unique contribution to the protection of the Arctic Environment.

Again, "soft law" may be viewed as a weak approach for achieving real environmental protection in fragile regions inhabited by indigenous peoples. As much as this approach represented a "first step" in the right direction, suggestions have already been made that "it will be necessary to establish appropriate institutional arrangements and substantive rules.

As mentioned above, the concept of the environmental rights and obligations for indigenous peoples began to consolidate in the mid- and lates of the last century. Indigenous rights within international environmental law, however, did not really gain recognition before the UNCED.

In fact, some instruments discussed or adopted at this Conference addressed diverse environmental issues related to indigenous peoples. First, the legally-binding Convention on Biological Diversity hereinafter referred to as "CBD" , points out in its Preamble the importance of the relationship between indigenous lifestyles and biological resources:.

Recognizing the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitable benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of the biological diversity and the sustainable use of its components. While not making reference to the term "right" in the preamble or any other part of the document, it provides that States shall respect, preserve and maintain certain indigenous practices and knowledge in relation to the conservation and sustainable use of biological diversity.

Criticized for being ambiguous and overly flexible, Article 8 j states:. Each contracting party shall, as far as possible and as appropriate: j Subject to its national legislation, 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 promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.

Principle 22 establishes that:. Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.

Third and wider in content and scope the Agenda XXI, a non-legally binding instrument, established a whole chapter addressing the relationship between environmental and indigenous issues.

Chapter 26, Recognising and Strengthening the Role of Indigenous People and Their Communities, outlined a set of activities and objectives that made reference to the goals contained in the C and the draft version of the universal declaration on indigenous rights now the United Nations Declaration on the Rights of Indigenous Peoples. The starting point in Agenda XXI establishes the following:.

In the context of this chapter the term "lands" is understood to include the environment of the areas which the people concerned traditionally occupy. Indigenous people and their communities represent a significant percentage of the global population. They have developed over many generations a holistic traditional scientific knowledge of their lands, natural resources and environment.

Indigenous people and their communities shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. Their ability to participate fully in sustainable development practices on their lands has tended to be limited as a result of factors of an economic, social and historical nature.

In view of the interrelationship between the natural environment and its sustainable development and the cultural, social, economic and physical well-being of indigenous people, national and international efforts to implement environmentally sound and sustainable development should recognize, accommodate, promote and strengthen the role of indigenous people and their communities.

The three main objectives in this instrument include i empowerment of indigenous peoples and their communities; ii active participation in the national formulation of policies, laws and programs; and iii involvement in resource management and conservation strategies as well as other programs established to support and review sustainable development strategies. Agenda XXI acknowledges that some indigenous peoples and their communities may require greater control over their lands, self-management of their resources, and more participation specifically, in establishing and managing protected areas.


Indigenous Law does not make Indigenous Right




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