Excerpted From: Melissa A. Padilla, Protecting Traditional Knowledge and Indigenous Peoples' Rights: The Key to Developing International Environmental Laws That Promote Harmonious Relationships with Nature, 54 California Western International Law Journal 1 (Fall, 2023) (146 Footnotes) (Full Document)

MelissaAPadillaA central tenet of traditional knowledge in many indigenous communities is the importance of establishing reciprocal relationships between humans and all living beings. Reciprocal relations nourish mutual benefits and are imbued with mutual responsibility and care for the other, thereby creating a bond no reasonable being would want to exploit. With this foundational approach to inhabiting the Earth, indigenous communities have established close cultural and spiritual relationships with and reliance on the land they live in. By contrast, most of humanity, motivated by ideas of power, wealth, and mass globalization, is far from embracing reciprocal relations with nature, and instead, continues to threaten all life on Earth.

With indigenous communities inhabiting around 22% of Earth's land surface, which corresponds to areas holding over 80% of Earth's biodiversity, indigenous peoples are disproportionately impacted by biodiversity loss and other environmental harms because they rely on resources from the local land. However, indigenous peoples are essential to restoring the health of the planet. Studies show that when given land rights, indigenous people substantially better conserve their territories compared to neighboring lands, demonstrating that humanity depends on indigenous communities and their traditional knowledge to protect and preserve biodiversity.

Cognizant that traditional knowledge can be important for better understanding and safeguarding the environment, several international environmental instruments include provisions to promote and regulate the use of traditional knowledge. Despite this, the use of traditional knowledge is decreasing. For example, studies reveal that between 2000 and 2009, traditional knowledge related to the use of plants among Tsimane' Amerindians (an Amazonian community) decreased as communities were forced out of their territories.

Meanwhile, in 2010, at the tenth meeting of the Conference of the Parties (COP-10) to the Convention on Biological Diversity (CBD), members agreed to a vision of “Living in Harmony with Nature” where “biodiversity is valued, conserved, restored, and wisely used, maintaining ecosystem services, sustaining a healthy planet and delivering benefits essential for all people” by 2050. However, this vision was established without requiring any serious commitments to protect traditional knowledge or the rights of indigenous peoples who have embodied that vision since time immemorial.

On December 18, 2022, the fifteenth meeting of the Conference of Parties (COP-15) adopted the post-2020 Global Biodiversity Framework, which sought to address the shortfalls of COP-10 by encouraging the protection of indigenous peoples, traditional knowledge, and human rights. While it is a step in the right direction, forging a path towards living in harmony with nature requires the establishment of reciprocal relationships with indigenous communities where Western society develops legal mechanisms to protect indigenous peoples' rights and traditional knowledge in exchange for learning from them.

As such, this article argues that the international environmental law regime should guarantee the protection of traditional knowledge and the rights of those who hold it while simultaneously maintaining its core environmental objectives. This article further argues that harmonization is the best mechanism for international environmental law and international human rights law to protect traditional knowledge, indigenous peoples' rights, and the environment. At its core, this article highlights the need for reciprocity between legal systems that mirrors the reciprocal relations between humans and nature that are vital to protecting the environment.

To develop those arguments, Section II explains what traditional knowledge is, provides examples of its harmonious use in nature, and demonstrates why it should inform environmental laws. Section III outlines international environmental instruments that recognize the importance of traditional knowledge and critiques international environmental law's current understanding and regulation of traditional knowledge. Addressing the concerns expressed in Section III, Section IV explores the implications of implementing a human rights-based approach and harmonization to incorporate human rights principles into international environmental law using the CBD as an example. Section IV then proposes the harmonization of international environmental law and international human rights law as the best mechanism for implementing legal structures that protect both the environment and traditional knowledge to possibly reach COP-10's 2050 goal of living in harmony with nature.

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Humanity's vision of living in harmony with nature requires changing human and societal relationships with nature. The traditional knowledge of many indigenous communities teaches about the value of all life and the responsibility to give back to those who have and continue to give. Sharing versions of these teachings through various cultural and spiritual practices, indigenous peoples survived for millennia by establishing and maintaining reciprocal relations with nature.

The rest of society must follow indigenous peoples' lead - not by taking from them as accustomed - by developing reciprocal relations with indigenous peoples. Reciprocal relations are established in this context by Western society appreciating cultural diversity and the teachings of indigenous peoples' traditional knowledge and ensuring the protection of that knowledge and its holders' human rights. However, international environmental instruments, as written, cannot currently nurture this kind of relationship.

The international environmental instruments that recognize the value of traditional knowledge in solving environmental crises were drafted with a Western understanding of what constitutes traditional knowledge and fail to recognize the various components that comprise traditional knowledge. Contrary to its goal of promoting traditional knowledge, international environmental instruments exhibit extractive tendencies by regulating only certain portions of traditional knowledge best suited to achieve the goals of each respective instrument. This failure to recognize the cultural and spiritual components of traditional knowledge that tie indigenous peoples to the information, practices, and systems their ancestors held encourages the erosion of traditional knowledge. The risk of cultural disassociation is further exacerbated because international environmental instruments grant great deference to States' national laws related to the use and regulation of traditional knowledge, despite a long history of genocide experienced by indigenous communities at the hands of State power.

Understanding the benefits of using traditional knowledge to address today's environmental crises, this article outlined how traditional knowledge and indigenous peoples' rights are protected under international human rights law to show how international environmental law stands to benefit from incorporating human rights principles into its legal regime. Since the CBD pertains to the protection of biodiversity, which is intertwined with the need to protect traditional knowledge and indigenous peoples' rights, and because various CBD bodies have utilized different approaches to embed human rights principles into the treaty, this article explored the implications of implementing a human rights-based approach versus harmonization. Findings from this exploration suggest that harmonization is better suited to protect traditional knowledge and biodiversity because harmonization serves as a form of legal reciprocity. Harmonization creates a mutually beneficial relationship between international environmental law and international human rights law because it creates balanced conditions for protecting traditional knowledge and biodiversity without any detriment to the other. It succeeds due to nature's reliance on indigenous peoples and their traditional knowledge and vice versa. This result brings the narrative of this article full circle by showing that the reciprocal relations needed between society and the environment to live in harmony require legal structures that mirror that relationship, namely that reciprocal relations be established between international environmental law and international human rights law to equally protect both the environment and the human rights of indigenous peoples and their traditional knowledge.

Melissa Padilla is a Legal Fellow at the National Student Legal Defense Network, where she advocates for students' rights by using impact litigation as a tool to hold powerful actors accountable.