Indigenous Peoples, Marine Space and Resources, and International Law: The Interaction Between International Human Rights Law and the Law of the Sea

Cover
Half Title
Series
Title
Copyright
Contents
Preface
Part I Setting the stage: introduction and historical overview
	1 Setting the stage
		1. Introduction
		2. Indigenous peoples, marine space, and marine resources: relations and significance
			2.1 Marine living resources as a means of subsistence
			2.2 Food for the soul: cultural and spiritual significance of marine space and resources
		3. Contemporary challenges to coastal indigenous peoples
		4. The rights of indigenous peoples to marine space and marine resources: a blind spot in international law?
		5. Aim of the book
		6. Situating the book: theoretical and methodological approaches
			6.1 TWAIL: a critical theoretical lens on international law
				6.1.1 The dual aims of TWAIL
			6.2 A human rights-based approach to natural resources
			6.3 TWAIL-driven methodological approaches
		7. Structure of the book
	2 The evolution of international law in relation to the rights of indigenous peoples to lands, marine space, and natural resources: a historical sketch
		1. Introduction
		2. Indigenous peoples in pre-classical international law: acquisition of indigenous lands and territories through conquest and 'just war'
		3. Indigenous peoples in the period of classical international law
			3.1 Emergence of ‘the law of nations’, and indigenous exclusion
			3.2 Decoupling natural law from the law of nations: further exclusion of indigenous peoples
			3.3 Classical international law doctrines related to the dispossession of the lands, marine spaces, and natural resources of indigenous peoples
				3.3.1 The doctrines of terra nullius and effective occupation
				3.3.2 The doctrine of freedom of the sea: mare nullius
			3.4 Intermediate conclusion
		4. Indigenous peoples in the UN era
			4.1 The UN and its decolonization process
				4.1.1 ILO Convention 107: integration as its basic policy
				4.1.2 Rejection of the doctrine of terra nullius: Western Sahara Case as a pioneer
				4.1.3 Old wine in new bottles: continued application of terra nullius and mare nullius by other means
			4.2 Development of international human rights law
				4.2.1 Adoption of general global and regional human rights instruments
				4.2.2 Evolution of indigenous-specific human rights instruments
		5. Conclusion
Part II International human rights law and the rights of indigenous peoples to lands, marine space, and natural resources
	3 International human rights law and indigenous peoples: norms relevant to the rights to lands and natural resources
		1. Introduction
		2. The right to self-determination: an evolving grand human right norm
			2.1 Indigenous peoples as holders of the right to self-determination
				2.1.1 Practices of treaty monitoring and regional human rights bodies with respect to the rights of indigenous peoples to economic self-determination
		3. The right to cultural integrity
			3.1 The collective dimension of indigenous peoples’ culture
			3.2 The material basis of culture
			3.3 Scope of States’ obligations relating to the right to culture
		4. Property rights to lands and natural resources
			4.1 Property rights to traditional lands under indigenousspecific human rights instruments
			4.2 Property right to traditional lands under general human rights instruments and practices of UN treaty monitoring and regional human rights bodies
			4.3 Property rights over natural resources pertaining to indigenous lands
		5. The right to equality and non-discrimination
			5.1 Non-discrimination as a right to differential treatment
		6. The right to consultation and participation
			6.1 Beyond consultation: the right to free, prior, and informed consent
		7. Conclusion
	4 Application of international human rights law to the rights of indigenous peoples in relation to marine space and marine resources
		1. Introduction
		2. Applicability of human rights law to marine space
		3. Human rights norms applicable to the rights of indigenous peoples to marine space and marine resources
			3.1 The right to self-determination: an overarching right to the governance of marine space and resources
			3.2 Access to marine areas and harvesting of MLRs as a cultural right
				3.2.1 Threshold of illegitimate interference to the right to culture
			3.3 The right to marine space and resources as a property right
				3.3.1 Unpacking the meaning of Article 13(2) ILO Convention: indigenous ‘land’ includes marine space
				3.3.2 Limits to the right to property over marine space and MLRs
			3.4 Non-discrimination in property rights over marine space and resources
			3.5 Procedural safeguards: the right to consultation and FPIC
		4. Conclusion
Part III Law of the sea and its interaction with the rights of indigenous peoples
	5 Rights and obligations of coastal states with respect to marine living resources under the law of the sea
		1. Introduction
		2. Development of the law of the sea
			2.1 Codification of the law of the sea
		3. Rights and obligations of coastal States with respect to MLRs in the different maritime zones
			3.1 The rights and obligations of coastal States in internal waters and the territorial sea
				3.1.1 Limitations on the sovereignty of coastal States over the territorial sea
			3.2 The rights and obligations of archipelagic States in archipelagic waters
			3.3 The regime of the exclusive economic zone
				3.3.1 The sovereign rights of coastal States in the EEZ
				3.3.2 The obligations of coastal States in the EEZ
				3.3.3 Species-specific conservation and management obligations
		4. The freedom of fishing on the high seas and the duties of high seas fishing States
			4.1 The 1995 Fish Stocks Agreement
		5. Conclusion
	6 Interaction between the human rights of indigenous peoples and the law of the sea
		1. Introduction
		2. General considerations on the interaction between human rights law and the law of the sea
		3. Mechanisms for interaction between human rights law and the law of the sea
			3.1 Express cross-referencing, relationship, and applicable law clauses
			3.2 Systemic integration: Article 31(3)(c) of the VCLT
		4. Specific areas of interaction between the rights of indigenous peoples and the law of the sea
			4.1 Coastal State powers in the internal waters and indigenous rights
			4.2 The obligation of coastal States to respect the right/ freedom of navigation of other States and the rights of indigenous peoples
				4.2.1 IMO’s PSSA regime: a special approach to manage navigation
			4.3 The duty of coastal States to manage and conserve MLRs and the rights of indigenous peoples
				4.3.1 The FAO Fisheries Instruments
			4.4 Traditional fishing rights of indigenous peoples of neighboring States
		5. Conclusion
	7 The rights of indigenous peoples to harvest marine mammals
		1. Introduction
		2. What constitutes a marine mammal
		3. The LOSC rules on the conservation of marine mammals
			3.1 The impact of Article 65 of the LOSC on the rights of indigenous peoples to harvest marine mammals
		4. General conservation-focused international instruments
			4.1 Regulation of trade in products of marine mammals for conservation purposes and indigenous rights: the rules of CITES
			4.2 Conservation of migratory species of marine mammals and rights of indigenous peoples: the rules of the CMS
		5. Agreements on the conservation of specific marine mammals and indigenous harvesting rights
			5.1 Historic agreements on the conservation of Bering fur seals
			5.2 The international convention for the regulation of whaling
				5.2.1 Aboriginal subsistence whaling: meaning and evolution
				5.2.2 Objectives of ASW and processes for setting catch limits
				5.2.3 Limitations of the ASW regime
				5.2.4 Towards a human rights-based ASW: the pay-off
			5.3 The NAMMCO agreement
			5.4 The 1973 agreement on the conservation of polar bears
		6. Conclusion
	8 Beyond international maritime boundaries: traditional fishing rights of indigenous peoples within maritime zones of other states
		1. Introduction
		2. Meaning and basic characteristics of TFRs
		3. Status of TFRs in the pre-LOSC regime: vested rights recognized under customary international law
		4. TFRs under the LOSC and the jurisprudence of international courts and tribunals
			4.1 TFRs within archipelagic waters
			4.2 TFRs within the territorial sea
				4.2.1 The award in the Eritrea/Yemen Arbitration
				4.2.2 The award in the Chagos Arbitration
				4.2.3 The award in the South China Sea Arbitration
			4.3 TFRs in the EEZ
				4.3.1 The award in the Barbados/Trinidad and Tobago Arbitration
				4.3.2 The ICJ’s decision on TFRs in the 2022 Nicaragua v Colombia case
		5. Indigenous peoples as beneficiaries of TFRs
		6. State practice on bilateral maritime boundary delimitation agreements dealing with TFRs of indigenous peoples
			6.1 The 1974 memorandum of understanding between Australia and Indonesia and its amendment
			6.2 The Torres Strait Treaty
			6.3 Maritime boundary delimitation agreements between Indonesia and PNG
			6.4 Maritime boundary agreements between PNG and the Solomon Islands
			6.5 Intermediate conclusion on State bilateral practice on TFRs
		7. Conclusion
	9 Conclusions
		1. Growing recognition and protection of the rights of indigenous peoples to marine space and marine resources under international human rights law
		2. Towards indigenization of the law of the sea
			2.1 Interaction between the law of the sea and the rights of indigenous peoples
Index