7 The Human Rights Implications of Access to Genetic Resources and the Equitable Sharing of the Benefits Arising from their Utilization

Annalisa Savaresi*

* Annalisa Savaresi (LL.B University of Brescia, Italy; LLM, M.Phil University of Durham, UK) has recently been selected as a Research Assistant at the Judge Business School, University of Cambridge, UK. This paper was developed at the request of the IUCN Environmental Law Centre.

7.1 Introduction

The present contribution aims to paint a picture of the human rights obligations that may be most relevant to the establishment of schemes of access to genetic resources and equitable sharing of the benefits arising from their utilization.163 Human rights have substantially contributed to shifting the focus of modern international law towards the pursuit of shared fundamental values,164 eroding States' exclusive domain over their nationals.165 In doing so, human rights have gradually penetrated all areas of the law.166 This predicament applies also to the Convention on Biological Diversity (CBD), whose implementing measures need to comply with the human rights commitments undertaken by its Parties.167

At the global level, the most comprehensive catalogue of human rights is the International Bill of Rights. The Bill of Rights comprises three instruments – the Universal Declaration of Human Rights,168 the International Covenant on Civil and Political Rights (ICCPR)169 and the International Covenant on Economic, Social and Cultural Rights (ICESCR).170 While the legal significance of the Universal Declaration is controversial,171 the two Covenants are legally binding treaties, which have been ratified by the vast majority of States.172 Both the ICCPR and the ICESCR provide reporting duties and monitoring mechanisms.

All human rights entail a set of obligations that may be distinguished in consideration of three elements:

Respect – i.e. governments must refrain from interfering directly or indirectly with the enjoyment of human rights;

Protect – i.e. governments have the duty to prevent third parties from interfering in any way with the enjoyment of human rights; and

Fulfill – i.e. governments must adopt measures necessary to achieve the full realization of human rights.173

The two Covenants distinguish between civil and political rights, and economic and social rights.174 This separation was the result of a precise political choice.175 The drafters treated civil and political rights as urgent commitments in need of immediate enforcement, whereas economic, social and cultural rights were laid down as programmatic statements, unsuitable for direct enforcement. As a result, the ICCPR provides explicit obligations176 and the body in charge of monitoring its implementation (Human Rights Committee)177 may receive communications regarding human rights violation from both States and individuals.178 The ICESCR, instead, has a more hortatory tone,179 and the body in charge of monitoring its implementation, (Committee on Economic, Social and Cultural Rights), may not receive individual communications.180

This categorization seems to establish a hierarchy between human rights objectives.181 Such interpretation has however been rejected by the UN General Assembly, which has on several occasions reiterated that human rights are ‘indivisible.’182 On separate grounds, it is sometimes contended that human rights enjoy primacy over other international law commitments.183 This theory is highly controversial and its analysis exceeds the purpose of the present contribution. It is nevertheless undisputed that many States Parties to the CBD have also adhered to the Covenants and other human rights instruments. These instruments have in some respects the same relevance as the ones undertaken with the CBD. It is therefore crucial to discern the human rights that may affect ABS systems. The ones that are more likely to be of some effect in this sense are the rights that deal with natural resources, land and property. The following analysis will seek to give an overview of these entitlement issues, detailing aspects that may be more sensitive to the elaboration of ABS schemes.

7.2 Human rights obligations

7.2.1 Self-determination

The notion of self-determination refers to a complex set of rules that have long been debated in international law. The principle dates back to the French Revolution, when it was first used to demand that territorial annexations or changes took into consideration the will of affected populations.184 The term has subsequently been deployed as a criterion for territorial changes in sovereign States; a democratic principle legitimizing modern States governments; an ‘anti-colonial’ rule; and a freedom principle for minority groups in sovereign States.185

The principle made its debut in an international law instrument with its inclusion in the UN Charter.186 This lead to a fierce ideological debate,187 as Western States claimed that the Charters' reference to self-determination was as a mere guideline and did not impose any specific legal obligations. Socialist and developing countries, on the other hand, insisted on its anti-colonial significance. This conflict is mirrored in the identical provisions under Article 1 of the Covenants:

  1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

  2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

  3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Article 1 is one of the most controversial provisions in the Covenants.188 In particular, the interpretation of the term peoples poses crucial questions as to the sphere of application of the norm. The drafters did not intend to limit self-determination to colonial peoples.189 According to its most widely accepted definition, the term people therefore refers to ‘entire populations living in independent and sovereign States,’ as well as ‘entire populations of territories that have yet to attain independence.’190

The notion of self-determination has both an external and an internal significance. In its external meaning, self-determination entails people's freedom from other States interference, as well as the right to secession. In its internal significance, self-determination is a continuing and permanent process, by virtue of which the members of a population must be able to choose their legislators and political leaders, free from interference from domestic authorities. This freedom is intrinsically related to the expression of popular will associated with other fundamental rights, such as freedom of expression;191 freedom of peaceful assembly192 and association;193 the right to take part in public affairs and the right to vote.194 Furthermore, internal self-determination has strong links with public participation and may be regarded as ‘a summa of civil and political rights.’195

Article 1(2)'s reference to the use of natural wealth configures peoples' sovereignty over natural resources as the economic consequence of their political self-determination.196 Some authors argue that this principle prohibits the use of natural resources to the exclusive benefit of small segments of the population.197 This view was endorsed by the African Commission on Human and Peoples' Rights in Social and Economic Rights Action Centre for Economic and Social Rights v. Nigeria, where it found that the Government of Nigeria had violated the Ogoni people's right to dispose freely of their wealth and natural resources.198

Peoples' rights over natural resources are not unlimited and must be exercised in compliance with international agreements aiming to promote international economic cooperation.199 As a result, agreements contrary to this right may be unilaterally terminated, without prejudicing commitments flowing from other international law sources.200

The enforcement of the right to self-determination is problematic. Undisputedly, all Parties to the Covenants are entitled to claim the fulfillment of obligations under Article 1, and the Human Rights Committee insists that States specifically report on their performances under this provision.201 Article 1, however, stands alone in the Covenants for the fact that its beneficiaries are peoples and not individuals, and the Human Rights Committee has reiterated on a number of occasions that its violations alone are not sufficient grounds for individual communications under the ICCPR.202

In spite of these difficulties, internal self-determination is a fully embodied human right that imposes binding obligations on States Parties to the Covenants. This right may be particularly relevant in national establishment of ABS schemes, which must comply with peoples' right to benefit from the exploitation of their natural resources.

An issue closely related to self-determination is the right to enjoy the benefits of scientific progress and its applications.203 The Committee on Social, Economic and Cultural Rights interprets this right as a stimulus to promote ‘the diffusion of information on scientific progress,’ and ‘to prevent the use of scientific and technical progress for purposes which are contrary to the enjoyment of all human rights, including the rights to life, health, personal freedom, privacy and the like.’204 Accordingly, this interpretation would call on States to ensure that intellectual property regimes are exercised in a non-discriminatory way.205

The same provision is of particular relevance to indigenous peoples.206 Paragraph 1 (c) of Article 15 ICESCR, in fact, sets out the right ‘to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ The Committee on Economic, Social and Cultural Rights has stated its interpretation that this entitlement also applies to ‘the knowledge, innovations and practices of indigenous and local communities.’207 With reference to indigenous peoples, this entails that States Parties adopt measures to ensure the effective protection of indigenous peoples' interests, taking into account their preferences. Such protection might include the development of system tools and concepts that enable countries to recognize, register and protect indigenous peoples' individual or collective authorship under national intellectual property regimes and should prevent their unauthorized use by third parties.208 In implementing these measures, States Parties should respect the principle of free, prior and informed consent of the indigenous authors (cf. infra).

7.2.2 Public participation

Citizens' involvement in government decision making is an essential building block of democratic societies. In human rights terms, public participation is an all-encompassing label used to refer to a variety of activities, including voting, petitioning, lobbying, campaigning, and access to government-held information. Public participation regimes find special application to vulnerable groups, such as women, indigenous populations, youth, racial and ethnic minorities.209

Since the 1970s, public participation has become common grounds in environmental regulations, both at the domestic and at the international level.210 Participation is included amongst the Rio Declaration principles211 and Agenda 21 asserts that broad public participation is a fundamental prerequisite for sustainable development.212

To date the most advanced international law instrument on the matter is the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Århus Convention.)213 The Convention was prepared in the framework of the UN Economic Commission for Europe and has been ratified by 41 Parties, including the European Community. The Convention combines elements typical of human rights and environmental agreements214 and may serve as a useful tool for guidance and inspiration in ways of addressing public participatory and information rights, in national ABS schemes.

Article 1 of the Århus Convention recognizes the right to a healthy environment for present and future generations,215 requiring State Parties to introduce procedures to guarantee this entitlement, articulated in three pillars: public participation; access to information and access to justice.216

The general right to participate in public affairs in the ICCPR217 provides the right to vote, the right to be elected, and the right to take part in public affairs.218 Several international legal instruments inject specific public participation mechanisms into environmental decision making.219 The Århus Convention presents the broadest and most detailed requirements on the issue, prescribing public participation in all ‘plans, programs and policies relating to the environment,’ as well as in the preparation of ‘regulations and legally binding normative instruments.’220

The right of access to information is part of the broader human right to freedom of expression.221 This entitlement includes freedom to seek information, as well as to receive it. Access to information is crucial to the enjoyment of several substantive human rights, such as the right to life and the right to respect for one's home, private and family life.222 The right of access to information is acknowledged in several international environmental law instruments.223 The Århus Convention prescribes very comprehensive obligations on the matter, including information on ‘the state of the environment and its components;’ ‘factors physically and institutionally affecting human health and safety;’ ‘cultural sites’ and ‘built environment.’224 Provisions on access to information are also specifically incorporated into Article 15 (5) of the CBD, which makes reference to prior informed consent (PIC).225 PIC practices are gaining currency as procedures to obtain the consensus of subjects likely to be affected by activities impacting on their health and well-being. These processes assume specific characteristics with reference to indigenous peoples (cf. infra).

Finally, the right of access to justice provided by the ICCPR226 and all main regional human rights instruments,227 entails the right to a fair and public hearing in front of an independent tribunal. These entitlements are cornerstones of the rule of law and of human rights protection.228 Numerous national legal systems lay down mechanisms enabling environmental organizations acting in the public interest to institute proceedings to supplement and scrutinize governmental action in environmental matters. Equally, several international instruments prescribe specific remedies that consent to redress environmental damage and to challenge the refusal of access to information, as well as the failure to enforce environmental regulations.229

The Århus Convention features the most elaborated set of guarantees in this respect, including a general right to the enforcement of environmental regulations and a specific right of appeal against the denial of access to information.230 The notion of public here refers both to private individuals and their associations, organizations or groups.231

Access to information and public participation may be regarded as core interests to the establishment of ABS schemes. It is therefore important that the undertakings associated with the right to participation lato sensu be taken in due consideration in the preparation of ABS schemes.

7.2.3 The right to develop

The UN Charter establishes a clear-cut relationship between human rights and economic and social development. Development is listed among the UN objectives and the Charter explicitly demands States to promote ‘higher standards of living, full employment, and conditions of economic and social progress and development,’ and ‘universal respect for, and observance of, human rights and fundamental freedoms for all.’232

During the preparatory works of the International Bill of Rights, developing countries unsuccessfully petitioned the introduction of a specific right to development. After long controversies, the UN General Assembly adopted a Declaration on the Right to Development,233 followed by the acknowledgement of development as a universal and inalienable human right.234The Rio Declaration further emphasized the conflicts and difficulties that might arise in establishing a link between development and environment.235 The mentioned acknowledgements, however, do not have the characteristics of binding legal commitments and to date the only treaty including an explicit right to development is the African Charter on Human and Peoples' Rights.236

The right to development refers to a combination of inter-state obligations, collective and individual entitlements based on existing economic and social rights. The beneficiaries of the right are not necessarily only States, but may also include peoples, groups and even in some cases individuals. The emphasis is again on participation. According to the Rio Declaration237 and Agenda 21,238 sustainable development contains both substantive and procedural elements, such as ‘sustainable utilization of natural resources; integration of environmental protection and economic development; pursuit of both intergenerational and intra-generational equity in the allocation of resources.’239

Recent decisions have demonstrated that, even though not legally binding,240 sustainable development goals may influence the outcome of litigation.241 Thus, in the Gabcikovo-Nagymaros Dam case, the International Court of Justice has made explicit reference to sustainable development, asking parties to ‘look afresh at the environmental consequences of their activities, according to contemporary international law standards and in the interest of sustainable development.’

The right of development is particularly significant to the preparation of ABS schemes. It is therefore fundamental for those negotiating and implementing ABS to keep abreast of development issues and give due consideration to practices relevant to integration of ABS with the promotion and fulfillment of those rights.242

7.2.4 The rights of indigenous peoples

Preambular provisions of the CBD contain its strongest recognition of indigenous peoples' close and traditional dependence on biological resources.243 In operative language, Article 8 (j) addresses certain aspects of related knowledge, innovations and practices of indigenous and local communities, requesting contracting States to:

Representatives of indigenous communities have expressed concerns over the relationship between the establishment of ABS schemes and their interests as described above.244 The present section contextualizes indigenous claims in the pertinent legal framework, shedding light on the principles on indigenous human rights that are likely to have some effect to ABS.

The idea of separate protection for specific human groups in international law derives from ‘the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives.’245 This notion applies to two distinct kinds of communities: ‘minority’ communities and ‘indigenous peoples.’

The treatment of minorities was one of the founding reasons for international human rights law.246 After World War II, concerns over the condition of minorities were translated into affirmative action aimed to safeguard their ‘right to be different.’247 Culture, religion, language and group psychology are considered the key indicia to identify minorities.248

Although they may be drawn to the concept of minority, indigenous peoples have specific characteristics that justify their separate protection under international law. According to the most widely endorsed definition, indigenous peoples are:

...those which, in having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.249

Indigenous peoples' distinguishing features are therefore pre-existence to an invasion process; a non-dominant position in the society in which they live; self-identification as a group and relationship to territory.

The first international law instrument dealing with indigenous rights was the 107 International Labour Organization Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (Convention 107).250 This binding plenipotentiary instrument's aim is to integrate and assimilate indigenous peoples in hosting States. Its approach was criticized for its lack of consideration for indigenous identity. Convention 107 is still in force for 18 countries251 but has been replaced by the 169 International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries (Convention 169),252 to date ratified by 18 other States.253

Convention 169 aims to preserve the identity of indigenous peoples, placing great emphasis on their relationship to territory.254 The Convention further outlines some principles on indigenous natural resources, including the right to participate in their use, management and conservation.255 In particular, States must consult indigenous peoples before undertaking or permitting any exploration or exploitation of such resources in indigenous lands.256 Whenever possible, concerned indigenous peoples must also enjoy the benefits of these activities and receive compensation for any damage sustained.

The rights of indigenous peoples are the object of the UN Draft Declaration on the Rights of Indigenous Peoples, adopted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities.257 The Draft Declaration represents a clear evolution in comparison with the ILO Conventions and explicitly includes indigenous peoples' right to internal self-determination.258 Most significantly for ABS, the Draft Declaration enunciates a variety of property rights, recognizing indigenous peoples' full ownership, control and protection of their cultural and intellectual property.259 The Draft Declaration has not yet been adopted by the UN General Assembly and does not have any binding legal status. It nevertheless provides an important source of reference for legal regimes dealing with indigenous peoples.

ABS schemes are liable to affect the human rights of indigenous peoples in several ways. Indigenous peoples' right to life, for instance, may be threatened by the opening or wider use of access to the remote areas where they live. This risk was recognized in Yanomani Indians v. Brazil, where the Inter-American Commission for Human Rights found that the construction of a Trans-Amazonian highway impaired the Indians' traditional life-style, amounting to a violation of their right to life. The same approach was endorsed in the admissibility decision of the case of Community of San Mateo de Huanchor and its Members v. Peru.260 Internal displacement and arbitrary denial of access to defined parts of territory may also contravene the right of liberty of movement and freedom to choose the place of residence.261 Furthermore, the Committee on Economic, Social and Cultural Rights considers forced evictions incompatible with the right to adequate food and housing, which provides a degree of security of tenure against forced eviction and harassment.262

The protection of indigenous peoples against discrimination is also relevant to their access and use of resources. According to the ICCPR, persons belonging to ethnic, religious or linguistic minorities must not be denied the right to enjoy their own culture, profess and practice their own religion, or use their own language.263 While ABS principles themselves will not prevent any of these activities, these principles might also be relevant where an external organization patents a traditional remedy or practice, and applies or asserts that patent against use or application of that remedy or practice by the traditional group.

The linkage is more obvious, when one notes that these rights against discrimination are often associated with property-related matters (territory) and the use of natural resources. In Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, the UN Human Rights Committee has found that the expropriation of the territory of the band and its subsequent use for exploration and development amounted to a violation of the prohibition of discrimination. Equally, in Maya Indigenous Communities of the Toledo District v. Belize, the Inter-American Commission found that, by failing to take measures to recognize the Community property right to the lands they traditionally occupied, Belize had violated the Maya's rights to non-discrimination and equality before the law.264

Finally, indigenous peoples' right to internal self-determination has found significant acknowledgement in the jurisprudence of international tribunals and States practice.265 In Mayagna (Sumo) Awas Tingni Community, the Inter-American Court of Human Rights found that, by the fact of their very existence, ‘indigenous groups have the right to live freely in their own territory.’266

Another significant endorsement of indigenous peoples' right to internal self-determination may be found in the land-claim agreements concluded by the Canadian Government. Canadian Courts have ruled that indigenous historical land occupation gives rise to land rights that have survived European settlement.267 The federal policy established to address unsettled aboriginal land claims has led to a number of land agreements,268 the most significant of which is the Nisga'a Final Agreement.269 This is a ‘modern-day land claims agreement’ which recognizes the Nisga'a as a nation. As a result, the Nisga'a own and control all subsurface resources and forests on their lands.270

They must be involved in management committees for the wider area and informed of projects that may affect them in a timely fashion.271

Concerns over indigenous peoples' rights on access and management of natural resources have lead some agencies to elaborate Free Prior Informed Consent practices (FPIC)272 for dealings involving indigenous peoples. FPIC is based on the acknowledgment of indigenous peoples' rights to their lands and resources, and may be regarded as a component of the right to self-determination.273 If generally adopted within a country or institution, FPIC procedures would require that indigenous peoples' negotiations with third parties be held on the basis of informed consent and in accordance with their customary laws and practices.274

The CBD indicates a preference that indigenous and local communities' traditional knowledge should only be used with their ‘approval.’275 This principle is mirrored in the Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment,276 as well as in the regional standards on access and benefit sharing adopted by the Organization of African Unity277 and the Andean Community.278 Here also, the linkage between this general recommendation and the binding requirements of Article 15's ABS system is difficult and controversial.

The Inter-American Commission on Human Rights has established the American Declaration which calls on States to ensure that any determination of rights on indigenous lands be based upon a process of ‘fully informed consent on the part of the indigenous community as a whole.’279 This implies that all community members receive full and accurate information on the nature and consequences of the process, and enjoy an effective opportunity to participate. In the Commission's view, these requirements also apply to State decisions that have an impact upon indigenous lands and their communities. In Mary and Carrie Dann, the Commission has also established that State authorities must put in place special measures to ensure the recognition of indigenous peoples' interest in their traditional lands and resources, as well as their right not to be deprived of this interest, ‘except with fully informed consent, under conditions of equality, and with fair compensation.’280

The treatment of indigenous peoples is one of the most sensitive human rights issues associated with the establishment of ABS schemes. It is therefore of the utmost importance that CBD Parties take into consideration the indigenous rights described in this section.

7.3 The enforcement of human rights: Some conclusions

State practice displays several mechanisms elaborated to influence and encourage the respect of fundamental rights. In the field of international trade, for example, many countries have chosen to adopt unilateral import restrictions, economic sanctions and selective purchasing policies aimed with these objectives, despite strong international pressure to eliminate such measures.281 Even strong WTO proponents such as the USA have adopted legislation to restrict import of all products from countries whose national policies are ill-perceived.282

Less difficult in terms of global trade law, the EU has established the practice of inserting human rights clauses in cooperation agreements with third countries. These clauses normally assert that protection of fundamental rights is an essential element of the agreement283 and include non-execution provisions, empowering Parties to take appropriate countermeasures, including suspension of the agreement,284 where such provisions are violated. These clauses are based on reciprocity and require that the EU also lives up to its human rights commitments. Human rights protection is also one of the conditions to access the EU,285 as well as to benefit from EU financial assistance286 and trade preferences.287

The UN has promoted significant action to integrate human rights concerns in international trade and business. In 2003 the Sub-Commission on the Promotion and Protection of Human Rights has approved the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.288 The Norms set out human rights responsibilities for companies and, although they are not legally binding, they provide a useful framework of reference for companies that intend to improve their human rights records.

In 2005, another initiative was commenced, which may also exert an important influence on human rights issues, by working through the commercial sector. That year, the UN Human Rights Commission appointed a Special Representative of the UN Secretary General on Business and Human Rights, in charge of identifying best practices and standards of corporate accountability for businesses. That same year the Business & Human Rights Resource Centre launched a system monitoring companies' human rights performances.289

The practices described above represent samples of pragmatic enforcement of human rights. Whether they are effective is open to debate. From a legal point of view, no general rule prohibits the adoption of unilateral measures. Still, their extraterritorial effects may raise concerns as to their consistency with international trade law. From the policy point of view, these practices serve as means to pressure States to comply with human rights objectives. In this regard, it is possible to argue that, once a State has undertaken to fulfill certain human rights standards, it has the duty to implement those standards by adopting appropriate national and administrative measures.290 From both perspectives, ABS schemes may take heed from lessons learnt through these efforts.

163 Convention on Biological Diversity, 31 ILM (1992), 818, entered into force on 29 December 1993, Art. 15.

164 Cf. Cassese, A. 2005. International Law, 2nd Ed.. at 365. Oxford University Press.

165 Cf. International Criminal Tribunal for the Former Yugoslavia, ICTY, Prosecutor v. Dusko Tadic: ‘The impetuous development and propagation in the international community of Human Rights doctrines, particularly after the adoption of the Universal Declaration of Human Rights in 1948, has brought about significant changes in international law, notably in the approach to problems besetting the world community. A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach. Gradually the maxim of Roman law hominium causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well.’ ICTY, Prosecutor v. Dusko Tadic A/K/A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No.: IT-94-1-AR72, at 97.

166 See for instance the Report of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 13 April 2006, UN Doc. A/CN.4/L.682.

167 CBD, Art. 22 (1): ‘The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.’

168 Universal Declaration of Human Rights, UN G.A. Res. 217A, UN, 1948.

169 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316, 1966, 999 UNT.S. 171, entered into force 23 Mar. 1976, hereinafter ICCPR.

170 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316, 1966, 993 UNT.S. 3, entered into force 3 Jan. 1976, hereinafter ICESCR.

171 Cf. Hannum, H. 1995. ‘The Status of the Universal Declaration of Human Rights in National and International Law,’ GA. J. Int'l &Comp. L., 25: 287–397.

172 The ICCPR has to date been signed by 67 States and has 160 Parties. The ICESCR has to date been signed by 66 States and has 155 Parties.

173 Cf. CESCR General Comment No. 12: The right to adequate food (Art. 11), 1999, UN Doc. E/C. 12/1999/5.

174 Cf. Vasak, K. 1977. ‘A 30-year struggle: the sustained efforts to give force of law to the Universal Declaration of Human Rights,’ The UNESCO Courier 30(11): 28–32.

175 The UN General Assembly opposed the separation of the catalogue of fundamental rights into two distinct Covenants.

176 ICCPR, Article 2 (2): ‘Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps (..) to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.’

177 ICCPR, Articles 28 and 45.

178 ICCPR Art. 41; First Optional Protocol ICCPR, UNGA Resolution 2200A (XXI) of 16 December 1966, entered into force 23 March 1976.

179 ICESCR, Art. 2 (1): ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’

180 ECOSOC Resolution 1985/17. A draft optional Protocol, giving the Committee competence to receive complaints, is currently under consideration, cf. www.ohchr.org/english/bodies/cescr/index.html

181 Cf. Meron, T. 1986. ‘On a Hierarchy of International Human Rights.’ American Journal of International Law 80: 1–23.

182 Cf. e.g., Resolution on Alternative Approaches and Ways and Means within the UN System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms, adopted 16 Dec. 1977, G.A. Res. 32/130, GAOR 32nd Sess., 105th Plen. Mtg., UN Doc. A/Res/32/130 (1977).

183 See for instance Orakhelashvili, A. 2005. ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolution,’ EJIL 16 (1): 88–112. On the application of the jus cogens doctrine by human rights tribunals cf. Shelton, D. 2006. ‘International law and ‘Relative Normativity’.’ In: Evans, M. (Ed.), International Law, 2nd Ed., at 168–170. Oxford University Press.

184 Cassese, A. 1995. Self-determination of Peoples: a Legal Reappraisal, at 11. Cambridge University Press.

185 Ibid., at 32.

186 Charter of the United Nations, June 26, 1945, 59 Stat. 1031, entered into force Oct. 24, 1945, hereinafter UN Charter. According to Article 1 (2), UN Members must aim ‘to develop friendly relations among nations based on the respect of the principle of equal rights and self-determination of peoples.’ The principle is further acknowledged in Article 55's reference to ‘the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.’

187 For an historical overview, cf. Brownlie, I. 1970. ‘An Essay in the History of the Principle of Self-determination.’ In: Alexandrowicz, C.H. (Ed.) Studies in the history of the law of nations, at 93. The Hague: Nijhoff.

188 Cf. Cassese, A. 1981. ‘The Self-determination of Peoples.’ In: Henkin (Ed.) The International Bill of Rights – The Covenant on Civil and Political Rights, at 92. New York, NY: Columbia University Press.

189 Cf. Bossuyt, M.J. 1987. Guide to the ‘travaux préparatoires’ of the ICCPR, at 44. Oxford University Press.

190 See Cassese, supra note 188., at 59.

191 Cf. ICCPR, Art. 19.

192 Cf. ICCPR, Art. 21.

193 Cf. ICCPR, Art. 22.

194 Cf. ICCPR, Art. 25.

195 See Cassese, supra note 192, at 102.

196 See Cassese, supra note 192, at 103.

197 See Cassese, supra note 188, at 56.

198 The Social and Economic Rights Action Centre for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples' Rights, Comm. No. 155/96 (2001).

199 ICCPR and ICESCR, Art. 1 (2).

200 See Cassese, supra note 188, at 56.

201 Cf. the Committee criticized Canada IV Periodic Report for its absence of reference to self- determination as applied to Canada's aboriginal peoples, cf. UNDOC CCPR/C/79/Add. 5.

202 Optional Protocol to the International Covenant on Civil and Political Rights, adopted Dec. 1966, 999 UNT.S. 302, hereinafter Optional Protocol.

203 Cf. ICESCR, Art. 15(1).

204 Cf. Alston, P. 1991. ‘The International Covenant on Economic, Social and Cultural Rights.’ Manual on Human Rights Reporting, at 69–70. Geneva: UN Centre for Human Rights: UN Institute for Training and Research.

205 Cf. Coombe, R.J. 1998. ‘Intellectual Property, Human Rights & Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and the Conservation of Biodiversity.’ Indiana Journal of Global Legal Studies 6(1): 59.

206 Cf. Chapman, A.R. 2000. ‘Approaching Intellectual Property as a Human Right: Obligations Related to Article 15 (1) (c).’ Discussion paper submitted to the Twenty-fourth session of Committee on Social, Economic and Cultural Rights, 13 November–1 December E/C.12/2000/12, at 30.

207 CESCR General Comment No. 17 (2005): The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (Article 15, paragraph 1 (c), of the Covenant) 12/01/2006 E/C.12/GC/17, at 9.

208 Ibid., at 32.

209 Declaration of the UN Conference on Environment and Development, UN Doc A/Conf.151/26/Rev.

210 For an historical overview, cf. Pring, G. and S.Y. Noé. 2002. ‘The Emerging International Law of Public Participation Affecting Global Mining, Energy and Resources Development.’ In: Zilman, D.N., A.R. Lucas and G. Pring,(Eds), Human Rights in Natural Resources Development, at 20. Oxford University Press.

211 Declaration of the UN Conference on Environment and Development, UN Doc. A/CONF.151/26/Rev.1, Report of the UNCED, Vol. 1 (New York), 1992, Principle 10: ‘Environmental issues are best handled with the participation of all the concerned citizens at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.’

212 Agenda 21, UN Doc. A/CONF. 151/26, Report of the UNCED, Vol. 1 (New York), 1992, Ch. 23, 2: ‘One of the fundamental prerequisites for the achievement of sustainable development is broad public participation in decision-making. Furthermore, in the more specific context of environment and development, the need for new forms of participation has emerged. This includes the need of individuals, groups and organizations to participate in environmental impact assessment procedures and to know about and participate in decisions, particularly those that potentially affect the communities in which they live and work. Individuals, groups and organizations should have access to information relevant to environment and development held by national authorities, including information on products and activities that have or are likely to have a significant impact on the environment, and information on environmental protection measures.’

213 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, (Århus), 38 ILM (1999), 517, entered into force on 30 October 2001, hereinafter Århus Convention. The Convention has 40 signatories and 41 Parties.

214 To date UNECE has 56 member States, mostly European, but also includes the Russian Federation, Canada and the United States.

215 Article 1 makes express reference to ‘the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being.’ The Preamble to the Convention also asserts ‘every person has the right to live in an environment adequate to his or her well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations.’

216 Århus Convention, Art. 1 ‘Each Party shall guarantee the rights of access to information, public participation in decision making, and access to justice in environmental matters in accordance with the provisions of this Convention.’

217 ICCPR, Art. 25: ‘Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: To take part in the conduct of public affairs, directly or through freely chosen representatives; To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; To have access, on general terms of equality, to public service in his country.’ Cf. also the analogous provision sub Art. 13 ACHPR.

218 Cf. Steiner, H.J. 1988. ‘Political Participation as a Human Right.’ Harvard Human Rights Yearbook 1: 96.

219 Cf. UNECE Convention on EIA in a Transboundary Context (Espoo Convention), Feb. 25, 1991, 30 ILM 1461 (1991), Art. 2; Association of South East Asian Nations (ASEAN) Agreement on the Conservation of Nature and Natural Resources, Jul. 9, 1985, Art. 16 (2); Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol, Oct. 4, 1991, XI ATSCM/2; 30 ILM. 1461 /1991), Art. 7; North American Agreement on Environmental Cooperation (NAAEC), Sept. 14, 1993, Can-Mex-US, 32 ILM: 1480 (1993), Art. 4 (2).

220 Århus Convention, Articles 6–8.

221 ICCPR, Art. 19 (2): ‘Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’

222 Cf. The European Court of Human Rights has been particularly proactive on this matter, cf. Guerra &Others v Italy, 26 EHHR, 357 (1998), and most recently, cf. Öneryildiz v. Turkey, 39 EHRR, 12 (2004).

223 Cf. The European Court of Human Rights has been particularly proactive on this matter, cf. Guerra &Others v Italy, 26 EHHR, 357 (1998), and most recently, cf. Öneryildiz v. Turkey, 39 EHRR, 12 (2004).

224 Cf. Convention for the Protection of World Cultural and Natural Heritage, Nov. 23, 1972, 27 U.S.T. 37, 1037 UNT.S. 151, Art. 27 (2); Association of South East Asian Nations (ASEAN) Agreement on the Conservation of Nature and Natural Resources, Jul. 9, 1985, Art. 16 (2); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 28 ILM. 657 (1989), Art. 2 (2); UN Framework Convention on Climate Change, May 9, 1992, UN Doc.A/CONF.151726, 31 ILM 849 (1992), Art. 6 (a) (ii); Convention for the Protection of the Marine Environments of the North-East Atlantic, Sept. 22, 1992, 32 ILM. 1069 (1993), Art. 9 (1); Convention on the Transboundary Effects of Industrial Accidents, Mar. 17, 1992, 312 ILM. 1330 (1992), Art. 9 (1); Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Mar. 17 1992, 31 ILM. 1312 (1992), Art. 16 (1); Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, June 21, 1993, 32 ILM. 1228 (1993), Art. 14 (1); North American Agreement on Environmental Cooperation (NAAEC), Sept. 14, 1993, Can-Mex-US, 32 ILM: 1480 (1993), Art. 1 (h).

225 Århus Convention, Art. 4.

226 CBD, Art. 15 (5): ‘Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.’

227 ICCPR, Art. 2 (3): ‘Each State Party to the present Covenant undertakes: to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; to ensure that the competent authorities shall enforce such remedies when granted.’

228 Cf. ECHR, Art. 13; ACHR, Articles 7, 25; ACHPR, Art. 7.

229 ICCPR, Art. 2 (3); ECHR, Art. 13; ACHR, Articles 7, 25; ACHPR, Art. 7.

230 Cf. e.g., Convention on the Protection of the Environment between Denmark, Finland, Norway and Sweden, Feb. 9, 1974, 1092 UNT.S. 279, 13 ILM 591 (1974); Convention on the Transboundary Effects of Industrial Accidents, Mar. 17, 1992, 312 ILM 1330 (1992), Art. 9 (3); Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, June 21, 1993, 32 ILM 1228 (1993), Articles 1, 6–11, 18; North American Agreement on Environmental Cooperation (NAAEC), Sept. 14, 1993, Can-Mex-US, 32 ILM: 1480 (1993), Articles 5–7; UN Convention on the Non-Navigational Uses of International Watercourses, May 21, 1997, UN Doc. A/51/869, 36 ILM 700 (1997), Art. 32.

231 Århus Convention, Art. 9.

232 UN Charter, Art. 55.

233 Declaration on the Right to Development, GA Res. 41/128 of 4 Dec. 1986, adopted by 146 votes to 1 (USA) with 8 abstentions (Denmark, FRG, Finland, Iceland, Israel, Japan, Sweden, UK).

234 World Conference on Human Rights: Vienna Declaration and Program of Action, UN doc. A/CONF.157/23, Part. I, adopted by consensus, hereinafter Vienna Declaration, at para.10: ‘the World Conference on Human Rights reaffirms the right to development, as established in the Declaration on the Right to Development, as a universal and inalienable right and an integral part of fundamental human rights.’

235 UN Doc. A/CONF 151/Rev. 1, 13 June 1992, at Principle 3: ‘The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.’ The concept of sustainable development was first enunciated in the 1980 World Conservation Strategy: IUCN, UNEP and WWF. 1980. World Conservation Strategy: Living Resource Conservation for Sustainable Development. Gland: IUCN. The concept was later reported in Brundtland, G. (Ed.) 1987. Our common future. Oxford: The World Commission on Environment and Development.

236 ACHPR, Art. 22: ‘All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. States shall have the duty, individually or collectively, to ensure the exercise of theright to development.’

237 UN Gen. Ass. A/CONF.151/26 (Vol. I).

238 Agenda 21, UNCED, Report, I, 1992.

239 For an analysis of the mentioned aspects, cf. Boyle, A. and D. Freestone (Eds). 1999. International Law and Sustainable Development: Past Achievements and Future Challenges. Oxford University Press.

240 Cf. Rosas, A. 2001. ‘The Right to Development.’ In: Eide, A., Krause, C. and A. Rosas (Eds). Social, Economic and Cultural Rights, 2nd Ed., at 126. The Hague: Kluwer Law International.

241 Cf. Gabcikovo-Nagymaros Dam, ICJ Rep. 7, 1997, at 140.

242 See Boyle and Freestone, supra note 241, at 18.

243 Cf. CBD, Preambular paragraph 12.

244 Cf. Statement of the International Indigenous Forum on Biodiversity at the Ad Hoc Open-ended Working Group on Access and Benefit Sharing, CBD, Bonn, 22–26 October 2001; Report of the Seventh Meeting of the Conference of the Parties to the Convention on Biological Diversity, Kuala Lumpur 2004, UNEP/CBD/COP/7/21, at 585.

245 Cf. Brownlie, I. 1988. ‘The Rights of Peoples in Modern International Law.’ In: Crawford, J. (Ed.), The Rights of Peoples, at 1–16.Oxford: Clarendon Press.

246 Cf. Alfredsson, G. 1993. ‘Minority Rights in a New World Order.’ In: Gomien, D. (Ed.), Broadening the Frontiers of Human Rights: Essays in Honour of Asbjørn Eide, at 1. Oslo: Scandinavian University Press.

247 Cf. Advisory Opinion of the Permanent International Court of Justice on Minority Schools in Albania, ‘the idea underlying the treaties for the protection of minorities is to secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peaceably alongside that population and cooperating amicably with it, while at the same time preserving the characteristics which distinguish them from the majority, and satisfying the ensuing special needs. In order to attain this object, two things were regarded as particularly necessary, and have formed the subject of provisions in these treaties. The first to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics. These two requirements are indeed closely interlocked for there would be no true equality between a majority and a minority if the latter were deprived of its own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being as a minority.’ Permanent International Court of Justice, 1935, PCIJ 1 (6 April 1935).

248 UN Special Rapporteur Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc E/CN.4/Sub.2/384/Add.1–7, 1977.

249 UN Special Rapporteur Martinez Cobo, Study of the Problem of Discrimination against Indigenous Populations, UN. Doc. E/CN.4/Sub.2/1986/7 (1986).

250 107 International Labour Organization Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, (ILO No. 107), entered into force 2 June 1959, 328 UNTS 24, hereinafter Convention 107.

251 Angola, Bangladesh, Belgium, Cuba, Dominican Republic, Egypt, El Salvador, Ghana, Guinea-Bissau, Haiti, India, Iraq, Malawi, Pakistan, Panama, Portugal, Syrian Arab Republic, Tunisia.

252 169 International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), entered into force 5 Sept. 1991, 72 ILO Official Bull. 59, hereinafter Convention 169.

253 Argentina, Bolivia, Brazil, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji, Guatemala, Honduras, Mexico, Netherlands, Norway, Paraguay, Peru, Spain, Bolivarian Republic of Venezuela.

254 Convention 169, Art. 14(1): ‘The rights of ownership and possession of the peoples concerned over the lands, which they traditionally occupy, shall be recognized.’

255 Convention 169, Art. 15(1): ‘The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programs for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damage which they may sustain as a result of such activities.’

256 Convention 169, Art. 15.

257 UN Draft Declaration on the Rights of Indigenous Peoples E/CN.4/Sub.2/1994/2/Add.1 (1994), hereinafter Draft Declaration.

258 Draft Declaration, Art. 3: ‘indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’

259 Draft Declaration, Art. 29: ‘Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.’

260 Cf. Yanomani Indians v. Brazil, Decision 7615, IACHR, Inter-American YB on Human Rights (1985), p. 264; Community of San Mateo de Huanchor and its Members v. Peru, Case 504/03, Report No. 69/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 487 (2004).

261 ICCPR, Art. 12. Cf. HRC General Comment No. 27: General Comment No. 27: Freedom of movement (Art.12), 02/11/99CCPR/C/21/Rev.1/Add.9.

262 ICESCR, Art. 11. Cf. also: CESCR General Comment 7: The right to adequate housing (Art.11.1): forced evictions: 20/05/97.

263 ICCPR, Art. 27.

264 Cf. Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984, U.N. Doc. CCPR/C/38/D/167/1984 (1990); Maya Indigenous Communities of the Toledo District v. Belize, Case 12.053, IA C.H.R. Report 40/04 (2004) at 153, 194.

265 Cf. Preliminary Report of the Special Rapporteur Daes, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights: Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples' Permanent Sovereignty over Natural Resources E/CN.4/Sub.2/2003/20. For an overview on the matter, cf. Foster, C. 2001. ‘Articulating Self-determination in the Draft Declaration on the Rights of Indigenous Peoples.’ EJIL 12(1): 141–157.

266 Cf. Mayagna (Sumo) Awas Tingni Community Case [2001] IACHR 9, 31 August 2001, Series C, No. 79, at 149.

267 Calder et al. v. Attorney General of British Columbia, [1973], 1 SCR 313.

268 Since 1973, the Canadian Government has concluded 14 comprehensive land-claim agreements: The James Bay and Northern Quebec Agreement (1977); the North-eastern Quebec Agreement(1978);the Inuvialuit Final Agreement(1984); the Gwich'in Agreement(1992); the Nunavut Land Claims Agreement (1993); the Sahtu Dene and Métis Agreement (1994); seven Yukon First Nation Final Agreements and corresponding Self-Government Agreements based on the Council for Yukon Indians Umbrella Final Agreement (1993); Nisga'a Final Agreement (2000).

269 Cf. Nisga'a Final Agreement, available at www.gov.bc.ca/tno/negotiation/nisgaa/default.htm.

270 Cf. A land-use plan for Nigsa'a lands, available at www.nisgaalisims.ca/landuseplan.html

271 For a detailed analysis of the Agreement, cf. Hurley, M.C. 2001. ‘The Nisga'a Final Agreement.’ Law and Government Division, available at www.parl.gc.ca/information/library/PRBpubs/prb992-e.htm#(18)

272 MacKay, F. 2004. ‘Indigenous Peoples' Right to Free, Prior and Informed Consent and the World Bank's Extractive Industries Review.’ Sustainable Development Law & Policy 4(2): 44–66.

273 Cf. Tamang, P. ‘An Overview of the Principle of Free, Prior and Informed Consent and Indigenous Peoples in International and Domestic Law and Practices.’ Paper presented at Workshop on Free, Prior and Informed Consent and Indigenous Peoples, organized by the Secretariat of UNPFII, available at: www.un.org/esa/socdev/unpfii/documents/workshop_FPIC_tamang.doc

274 Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Working Group on Indigenous Populations, Twenty-second session, 19–23 July 2004, at 5.

275 CBD, Art. 8(j). Cf. also: Report of the Second Meeting of the Ad Hoc, Open-Ended, Inter-Sessional Working Group on Article 8(j) and RelatedProvisions of the Convention on Biological Diversity. UNEP/CBD/WG8J/2/6/Add.1, 27 November 2001, at 11.

276 CBD COP Decision V/26A, at 11.

277 African Model Legislation For The Protection Of The Rights Of Local Communities, Farmers And Breeders, And For The Regulation Of Access To Biological Resources, available at: www.biodiv.org/doc/measures/abs/msr-abs-oau-en.pdf

278 Andean Community, Decision 391, Common Regime of Access to Genetic Resources of the Commission of the Cartagena Agreement, July 1996.

279 Report No. 96/03, Maya Indigenous Communities and their Members (Case 12.053 (Belize)), 24 October 2003, at 141.

280 Inter-Am. C.H.R., Report N° 75/02, Case N° 11.140, Mary and Carrie Dann (United States), Dec. 27, 2002. OEA/Ser.L/V/II.116, Doc. 46, at 131.

281 Cf. Bandtner, B. and A. Rosas, 1999. ‘Trade Preferences and Human Rights.’ In: Alston, P. (Ed.), The European Union and Human Rights, at 699–730. Oxford University Press; McCrudden, C. 1999. ‘International Economic Law and the Pursuit of Human Rights: a Framework for Discussion of the Legality of ‘Selective Purchasing’ Laws under the WTO Government Procurement Agreement.’ Journal of International Economic Law 2: 3

282 Cf. Act Regulating Contracts with Companies Doing Business with or in Burma (Myanmar), Ch. 130, 1996 Session Laws, Mass. Gen laws Ann., Ch. / 223 (West 1997).

283 Cf. Riedel, E. and M. Will. 1999. ‘Human Rights Clauses in External Agreement of the EC.’ In: Alston, supra note 285, at 723–754. The clauses make reference to Human Rights catalogue of the 1948 Universal Declaration of Human Rights and, in the European context, the main references are the Helsinki Final Act 1975, 14 ILM 1292 (1975), and the Charter of Paris for a New Europe, 1990, 30 ILM 190 (1991).

284 Since 1995 the Human Rights clause has been inserted systematically in all trade and cooperation treaties of general nature.

285 Cf. Treaty of the European Union, Art. 49.

286 Cf. e.g., PHARE for Central and Eastern European candidate countries, TACIS for countries belonging to the former Soviet Union, MEDA for the Mediterranean area.

287 Cf. the General System of Preference, GSP, as currently laid down in the Council Regulation (EC) No 2501/2001.

288 For a commentary, cf. ‘The UN Human Rights Norms for Business: Towards Legal Accountability,’ available at: www.amnesty.org/library/pdf/IOR420022004ENGLISH/$File/IOR4200204.pdf; cf. also Kinley, D. 2006. ‘The UN Human Rights Norms for Corporations: The Private Implications of Public International Law.’ Human Rights Law Review 6(3): 447.

289 Cf. www.business-humanrights.org

290 Cf. Francioni, F. 2001. ‘Environment, Human Rights and International Trade’, at 1. Oxford University Press.

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