This article was downloaded by: [York University Libraries]On: 05 July 2014, At: 07:54Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK

Journal of International Wildlife Law &PolicyPublication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/uwlp20

Globally Important AgriculturalHeritage Systems: An Examination ofTheir Context in Existing MultilateralInstruments Dealing with Conservationand Land TenureStuart R. Harrop aa Chair of Wildlife Management Law, Durrell Institute ofConservation and Ecology, Department of Anthropology , Universityof Kent , Canterbury, Kent, CT2 7NS, United KingdomPublished online: 08 Sep 2009.

To cite this article: Stuart R. Harrop (2009) Globally Important Agricultural HeritageSystems: An Examination of Their Context in Existing Multilateral Instruments Dealing withConservation and Land Tenure, Journal of International Wildlife Law & Policy, 12:3, 127-165, DOI:10.1080/13880290903202286

To link to this article: http://dx.doi.org/10.1080/13880290903202286

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all the information (the“Content”) contained in the publications on our platform. However, Taylor & Francis,our agents, and our licensors make no representations or warranties whatsoever as tothe accuracy, completeness, or suitability for any purpose of the Content. Any opinionsand views expressed in this publication are the opinions and views of the authors,and are not the views of or endorsed by Taylor & Francis. The accuracy of the Contentshould not be relied upon and should be independently verified with primary sourcesof information. Taylor and Francis shall not be liable for any losses, actions, claims,proceedings, demands, costs, expenses, damages, and other liabilities whatsoever orhowsoever caused arising directly or indirectly in connection with, in relation to or arisingout of the use of the Content.

This article may be used for research, teaching, and private study purposes. Anysubstantial or systematic reproduction, redistribution, reselling, loan, sub-licensing,systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &

Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

Journal of International Wildlife Law & Policy, 12:127–165, 2009Copyright C© Taylor & Francis Group, LLCISSN: 1388-0292 print / 1548-1476 onlineDOI: 10.1080/13880290903202286

Globally Important Agricultural HeritageSystems: An Examination of TheirContext in Existing MultilateralInstruments Dealing with Conservationand Land Tenure

STUART R. HARROP1

1. INTRODUCTION

The United Nations Food and Agriculture Organisation (UN FAO) is exam-ining mechanisms to protect the diversity of traditional agricultural systemsoperating around the world. The project is entitled GIAHS—Globally Impor-tant Agricultural Heritage Systems.

This article, being the first of two dealing with GIAHS, is based on areport written by the author for the UN FAO in August 2005.2 It analyzes theinternational legal and policy matrix to assess the level of existing support forGIAHS and to ascertain the gaps in that support. This article focuses on conser-vation and land tenure and the second will examine intellectual property rights,trade issues, and potential mechanisms to secure the persistence of GIAHS.

The approach taken is to deal with particularly relevant aspects of theinternational regulatory regime rather than to iterate comprehensive detailsthat might, perforce, encompass considerable quantities of text concernedwith marginally relevant instruments.

1 Chair of Wildlife Management Law, Durrell Institute of Conservation and Ecology, Departmentof Anthropology, University of Kent, Canterbury, Kent CT2 7NS, United Kingdom. E-mail:S.R.Harrop@kent.ac.uk

2 This article is based upon research carried out by the author in August 2005 for the UN FAO in respectto its Globally Important Agricultural Heritage Systems (GIAHS) project, it does not necessarily reflectthe views of the UN FAO or its staff, officials or representatives in respect of the subject-matter herein.Moreover, since the research was undertaken, the concept of GIAHS has moved on and some changeshave been made to accommodate developments. The original research report was far too long to be dealtwith in one article and so this is the first of two articles dealing with distinctly different aspects of thelegal context of GIAHS. The author would like to thank and acknowledge Parviz Koohafkan of the FAOand colleagues within his team for the opportunity to work with this subject and for all the help given incollating this research.

127

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

128 HARROP

Further, there are a number of soft instruments that are not mentionedor dealt with in any detail herein but which support the concept of GIAHS.These are not ignored through lack of value; rather, they have given rise toother expressions of their principles in subsequent instruments, which aredealt with herein. An example of this is the World Charter for Nature,3 whichcontains text supportive of the concept of GIAHS and which has acted as thefoundation for development of an enlightened international approach to thehuman relationship with the natural world.

There are also many instruments functioning at the regional level thatare beyond the scope of this analysis.4 For the present, it is appropriate toindicate that regional law and policy will be relevant in context-specific casesas GIAHS sites are established and prior analysis of regional and nationallaws and policies will be required in each case.

1.1. GIAHS

Humans have shaped the natural environment in most of the world’s zonesand in many instances have developed, through a process of slow evolution,sustainable systems of agriculture that are specifically adapted to the condi-tions in which they live. These systems often maintain a high diversity ofbiological resources and also demonstrate unique aspects of human cultureand human heritage which have co-evolved with the agricultural systems andcontribute to the functioning of the unique relationships between humans andthe natural environment.

The finest examples of these systems offer many lessons and advantagesto the wider community of humans. Thus the long, hard evolutionary lessonslearned in these traditional systems demonstrate how human culture, custom-ary laws, and community structures can contribute to maintaining sustainablelifestyles. Moreover, many systems are maintained in extreme conditions andthus have developed races of plants or breeds of animals that can survive inextreme conditions.

In these contexts, both the technology of the agricultural systems and thegenetic resources deployed therein can provide insurance for the wider globalhuman community to withstand some of the consequences of the current,accelerated process of climate change. Beyond this, the very nature of thebiological diversity developed and preserved by these systems provides aninsurance against disease, whereas monocultures of genetic resources lackthe genetic capacity to withstand focused disease attack.

3 28 October 1982 UN General Assembly Resolution 37/7.4 Two such instruments include the European Landscape Convention (Council of Europe ETS No. 176,20 October 2000) and the African Convention on the Conservation of Nature and Natural Resources(Adopted at the second summit of the African Union on 11 July 2003).

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 129

A key characteristic of GIAHS sites is that they combine both biodi-versity and traditional agricultural heritage. The current definition of GIAHSis:

Remarkable Land Use Systems and landscapes which are rich in biological diversityevolving from the co-adaptation of a rural community with its environment and itsneeds and aspirations for sustainable development.5

The GIAHS project is seeking to create a formal structure whereby GIAHSsystems are globally recognized and protected as repositories of knowledgeand living practices which should be preserved for their own sake, because theytend to support the integrity of biodiverse ecological systems and because theymay provide sustainable agricultural solutions beyond their existing rangesparticularly for ecologically and climatically sensitive zones. In executingthe project the capacity of traditional farming communities is intended tobe strengthened and conserved but at the same time their ability to adaptto changing socio-economic and environmental circumstances is to remainunrestricted. Initially the intention is to establish 5–10 pilot sites around theworld, moving up to 100–150 sites as the project becomes fully established.

The variety of potential sites currently being considered as candidatesfor the pilot study is extensive and comprises examples in most continents.6

A small selection of examples taken from the vast array of candidate sitesincludes: traditional shifting agriculture practices in all tropical forest regionsthroughout the world, ancient systems of marshland agriculture in Iraq, Oa-sis agro-ecosystems in Tunisia, floodplain recession agriculture in Mali, highaltitude traditional agro-ecosystems adjacent to Lake Titicaca in Peru andBolivia, home gardens in Mexico, Belize, and Pacific Islands, rice systemslinked with fish-farming in China, pastoralism in the Thur Desert in India,traditional agriculture and the preservation of ancient landraces in Ladakh,traditional agro-ecosystems in the Carpathian region of Slovakia, and rein-deer management by both nomadic and sedentary ethnic communities inSiberia.7

The GIAHS concept and the implications deriving from it clearly relateto many disparate areas of policy and law. Further, the project is in a dynamicstage and the FAO continues to examine the concept in depth and clarifyit as the project develops. There are some definitional issues that affect themanner in which the existing concept fits into and is supported by internationallaw. These will be developed as they arise but if the GIAHS concept is

5 http://www.fao.org/nr/giahs/definition/en. Accessed on 12 August 2009.6 http://www.fao.org/nr/giah/whataregiahs/other-systems/en. Accessed on 12 August 2009.7 See: GIAHS website Ibid. and Miguel A. Altieri, Globally Important Ingenious Agricultural Her-

itage Systems (GIAHS): Extent, Significance, and Implications for Development (2004). GIAHS 2ND

INTERNATIONAL WORKSHOP, UNITED NATIONS FOOD AND AGRICULTURE ORGANIZATION, Rome, Italy.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

130 HARROP

to be included in new instruments then an enhancement and refinement ofthe definition may be required without compromising the basic elementswithin it.

As a means to accurately capture all components of GIAHS in a def-inition, it will probably be necessary to compile a list of potential GIAHSexamples with details of their characteristics. This would facilitate the dis-covery of both common and idiosyncratic characteristics and would ensurethat all legal needs could be supported.

In order to discover the extent to which international law supports GI-AHS and to define the lacunae in that regime, it is essential to isolate thecomponent parts both patent and latent. Table 1 contains a summary of po-tential areas that are dealt with (or may need to be dealt with) in internationalregulation and policy instruments which are in existence and have relevanceto GIAHS or which may need to be newly created in order to facilitate thefulfilment of the goals of GIAHS. The first two groups are dealt with in thisarticle, and the remaining areas are analyzed in the second article in this seriesappearing in the forthcoming issue of the Journal of International WildlifeLaw and Policy.8

By setting out the list of areas no attempt is made at this stage to prioritizesuch areas or attach comparative importance to any of them.

1.2. The Nature of the Regime of International Law and Policy DealingWith Biodiversity Preservation and Sustainable Use

The concept of GIAHS falls clearly into the remit of the UN FAO as describedin its constitution.9 As will be seen, the need for development of GIAHS withinthis organization is supported by many international instruments and indeedfits well with the current trend of goals proclaimed within both the 1992 andthe 2000 Earth and World summit meetings. The GIAHS concept is perfectlyplaced to facilitate the appreciation of the role that our own species can playto preserve our relationship with the Earth.

The current mission for GIAHS is capable of fulfilment in its ownright by appropriate funding, through the negotiation of agreements withindividual states and through accords between the FAO and other conventionsand institutions. However, the achievement of these objectives would dependupon goodwill in many cases and in the long term the concept would bebetter supported by international mandates that could be implemented through

8 Journal of International Wildlife Law and Policy, 12(3).9 For example, see: Constitution of the Food and Agriculture Organization of the United Nations, ArticleI.2: “The Organization shall promote and, where appropriate, shall recommend national and interna-tional action with respect to [inter alia] (c) the conservation of natural resources and the adoption ofimproved methods of agricultural production.” (Basic texts of the Food and Agriculture Organization ofthe United Nations, Vols. I and II, 8 2006.)

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 131

TABLE 1. List of issues relevant to GIAHS that require support through international policy and law

1. Conservation• Conservation and sustainable use of agricultural biodiversity• Conservation and sustainable use of biodiversity• Human impact on landscape and maintenance of human dependent biodiversity• Promotion and protection of traditional knowledge systems (and vehicles such as languages for

those systems) to the extent that those knowledge systems conserve agricultural and biologicaldiversity

• Protected area conservation• Protection of GIAHS activities through protection of adjacent lands either as buffer zones to

the system or as conservation protected areas• Zoning of protected areas; traditional use zones, buffer zones and graduated use zones• Globally important/unique protected areas; world heritage, etc.• Special conservation measures in arid zones, marine areas, inter-tidal zones, non-marine

wetlands, forests, etc.2. Land Tenure, the laws of indigenous and rural communities, and Human Rights

• Customary laws relating to land title• Balance between state and community ownership in protected areas and protected zones• Hybrid land rights: easements, etc.• Effective community ownership of lands in which GIAHS examples operate• Decentralisation of land management: balance of control between central and local authorities

and devolution of local area control to GIAHS communities• Supporting and facilitating self-supporting community agricultural systems through

appropriate rights in buffer zones to GIAHS areas• Participation by community representatives in wider planning/land control decisions that might

impact on the protection of the agricultural system or the land on which it takes place and theadjacent/other lands on which it depends (e.g., water catchment areas)

• Customary laws and forms of social organisation of indigenous and rural communities thatsupport sustainable agricultural systems

• Protection of customary legal systems with incidental protection for minority participants in therelevant community (women, etc.) with added state controls to regulate despotism

• Restitution of land to indigenous and tribal people• Right to continuance of cultures and traditional practices• Right to decide own use of land and natural resources• Right to choose own approach to development• Right to participate in planning• Right to participate in process of international law and policy making concerning GIAHS• Capacity building• Alleviation of poverty

3. Intellectual Property Rights• Nature of traditional ecological/agricultural knowledge (TK)• Nature of ownership of TK and of natural resources which are the subject of TK• Vehicles for protection of intellectual property in TK: sui generis rights, etc.• Prior informed consent for access to genetic resources• World trade and intellectual property protection• Equitable benefit sharing• Global seed repositories and mechanisms for shared access to genetic resources

4. Trade• Trade in endangered species; CITES, ranching, split-listing in CITES appendices• National and international free trade legislation/tariffs relevant to agricultural products• Eco-labeling• Multilateral consent to departures from basic free-trade requirements in multilateral trade

regime• Enhanced trade in products from GIAHS systems which possess special characteristics by

reason only of their derivation from those systems (the issue of PPMs)

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

132 HARROP

resultant national legislation. The phrase international mandates encompassesinternational legislation, accords between international institutions and, oralternatively, soft policy instruments. The second article in this series willexamine these alternatives in more detail.

The nature of the concept of GIAHS is supported by diverse facets ofinternational law and policy. The net result is some support for the conceptat the framework level but with no direct facilitation of the components thatwould preserve GIAHS systems and integrate their preservation within otherglobal regulatory regimes that might otherwise impinge on their survival. Theissue, when examined in the context of the current regimes of biodiversityprotection, reveals many of the dynamics, challenges, and obstacles facingthe progression of other environmentally sound projects. Thus issues of statesovereignty versus global security and the integrity of global ecosystems;balancing concerns for the preservation of nature with the need to alleviatepoverty and fulfill other human needs; the integration of measures to protectminority trading activities within the multilateral trade regime; human rightsand the status of indigenous peoples’ claims for land restitution all arise inrelation to this topic and do not make for easy legal and political solutions tofacilitate sound progress.

The single piece of legislation that brings together many of the relevantissues is the Convention on Biological Diversity. The CBD does not providedetailed guidance for governance but sets out a framework and, in so doing,seeks to address many of the challenges mentioned. The CBD lends itself wellto the creation of subsidiary protocols (Cartagena, for example) that deal withthe conservation of biodiversity, the interrelationship of the human elementwith conservation, and the sustainable use of biological resources throughagriculture and other means of exploitation. The CBD could also provide thesupport of a joint venture partner for the UN FAO, as it did in respect of thework required to establish the International Treaty on Plant Genetic Resourcesfor Food and Agriculture (PGRFA).

2. CONSERVATION

The legislation and policy in the field of conservation is extensive. Early in-struments in this field focused on species conservation. With a few exceptions,in which they dealt with protected areas, they emphasized tracts of land dis-tinctly defined where only non-human species would live. More recently, theinstruments have had a more holistic approach to conservation linking humancommunities and human issues to species conservation and protected areamanagement. However, the GIAHS concept contemplates humans operatingand living in the central zone of a protected area. Such a scenario is supportedby regulatory regimes only in exceptional cases.

Conservation instruments deal with a wide range of habitats and thusencompass a diverse group of potential GIAHS activities. Because this article

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 133

is concentrating on the highest level of regulation, unless the context so re-quires, distinguishing between different classes of potential GIAHS activities(and thus different classes of habitats) has been avoided. It is important to ap-preciate, however, that GIAHS agricultural activities may involve exploitationof natural resources on open land, in wetlands, in montane areas, in forests,in the open sea, in the intertidal zones, and in most of the areas in whichhumans are capable of surviving. Therefore, the general references herein toconservation of habitats and protected areas should be construed to includethe entirety of the range of possible sites in which GIAHS activities couldtake place.

In this section the relevant instruments are examined in the light of theneed to support the facets of GIAHS as detailed in Table 1. From the outset,it must be made clear that, whereas biodiversity and traditional agriculturalheritage may often co-exist and may be protected and supported within legis-lation designed to protect biodiversity, there are many instances in which theyare mutually exclusive and the dynamics that drive them may be in conflict. Anexample of this is the regulatory dynamic to preserve pristine, primary habitatrather than secondary but often equally diverse habitat that may be a productof direct human intervention through traditional agricultural practices.10

2.1. Agenda 2111

Agenda 21 is an extensive document dealing comprehensively with the issuesof environmental protection and development as seen in 1992. Its remit is farwider than conservation and it is relevant to the analysis of other subjectsdealt with herein. It deals in detail with human issues and advocates thattraditional human practices within the natural world, to the extent that theyare sustainable with a positive impact on the natural world, are promoted andprotected. It is still an authoritative document but should also be read in thelight of the decisions of the Johannesburg Summit. There are many parts ofthe text that could be construed to directly support the GIAHS concept orwhich would otherwise support incidental measures designed to strengthenthe functioning of GIAHS. In terms of the support for GIAHS from theconservation perspective the following parts of the text are relevant.

10 Some believe that many primary habitats that superficially appear to have developed apart from humaninfluence are the product of sophisticated yet subtle traditional practices. See in the context of Amazonianrainforest the debate in: Darrell A. Posey Indigenous Peoples: Missing Links and Lost Knowledgein the Conservation of Brazil’s Tropical Forests, in R. J. Hoage and K. Moran (1998) CULTURE THE

MISSING ELEMENT IN CONSERVATION AND DEVELOPMENT, National Zoological Park Smithsonian Institution,Kendall/Hunt Iowa p 114 and Look R. (2001). A Better Understanding of Traditional Home GardensThrough the Use of Locally Defined Management Zones. INDIGENOUS KNOWLEDGE AND DEVELOPMENT

MONITOR, July (2001).11 REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, Rio de Janeiro, 3–14

June 1992, vol. I: Resolutions adopted by the Conference, resolution 1, annex II.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

134 HARROP

2.1.2. Combating Deforestation

Governments are required to act to increase forest cover where feasible,working, inter alia, with indigenous people, to establish and expand protectedareas that, in addition to ecological aspects, should also preserve spiritual val-ues and to support sustainable utilization of the traditional forest habitats ofindigenous people, forest dwellers and local communities. This whole area, inpractical terms, remains a controversial topic even for conservationists at na-tional level. Thus the role of people (and necessarily the nature of their tenurein secondary conservation zones) is not clarified in detail in legislative instru-ments and reliance on policy has resulted in an inconsistent application of theprinciples enunciated herein in Agenda 21. This may be a key area for instru-ments relating to GIAHS to address especially in highly diverse tropical forestareas. Indeed, traditional shifting agriculture practices in tropical forests pro-vide a profuse source of potential GIAHS examples. Bearing in mind that theseforest regions provide the greater range of biological diversity, human agricul-tural systems operating therein are necessarily diverse in their approach. Thisprovision constitutes a direct mandate to support forest based GIAHS activi-ties which, to date, may be overlooked in many areas with the prime focus onpreserving primary forest without human presence beyond limited tourism.

2.1.3. 14 - Promoting Sustainable Agriculture and Rural Development

Section B of this chapter urges more community control over agricultureand changes in market mechanisms and details other matters (14.16). Para-graph 14.25 expresses the requirement to intensify agriculture to meet needsbut with the qualification that there should be no encroachment onto fragileand marginal lands. 14.55 deals with some aspects of in situ conservation ofvaluable gene stock. Beyond these references, which have no direct impacton GIAHS, this chapter is surprisingly unsupportive of GIAHS.

2.1.4. 15 - Conservation of Biological Diversity

The combination of 15.4(g) and 15.5(e) is to reiterate Article 8(j) CBD,which is analysed later. Both provisions are supportive of GIAHS.

2.1.5. 16 - Environmentally Sound Management of Biotechnology

16.39 urges the recognition and fostering of traditional methods andknowledge and equitable benefit sharing from biotechnological developments.Again there are provisions which mirror Article 8(j) CBD and are thus sup-portive of GIAHS.

2.1.6. 32 - Strengthening the Role of Farmers

32.2 acknowledges indigenous and other rural families as stewards ofnatural resources and this is a precise re-statement of an aspect of the principles

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 135

in Article 8(j) that directly support GIAHS. The policy statement herein di-rectly supports the type of traditional use zones that is required to supportGIAHS agricultural systems especially where the species conservation man-dates are so focused on non-human species as to be otherwise unhelpful.

2.2. The Forest Principles

Ethnobiological12 knowledge and practices are at their most diverse in tropicalforests and they share this level of diversity geographically with biologicaldiversity, cultural, and linguistic diversity. Many potential GIAHS systemsare found within and adjacent to forests. Whereas an agricultural systemmay operate by deforesting small areas within a shifting cultivation systemthe relevant example of GIAHS is only effective because of the conditionscreated by the adjacent primary or old secondary forest. Historically, theGIAHS community will have depended upon this forest for other needs (cleanand regular supply of water deriving from forest catchment areas, medicinalplants, hunted meat, and so on). Regulation of forest activities is thus a keyarea for examination.

The Forest Principles are non-binding but would lend significant author-ity to any further regulatory instrument to support GIAHS. The principles urgesupport for indigenous peoples living in forests, the provision of an economicstake in forest use, appropriate land tenure arrangements, and equitable benefitsharing in relation to traditional knowledge. These principles are repeated ina number of instruments; in particular, the provisions of the CBD.

2.3. Johannesburg Declaration on Sustainable Development

The JDSD is extremely wide ranging and the concept of GIAHS is sup-ported by many of the principles enunciated in its text. Some provisions in theDeclaration are dealt with in more detail under individual subject headings.Particular provisions are directly relevant to GIAHS and a progressive imple-mentation of GIAHS would fulfil aspects of them. Paragraph 40 concentrateson agricultural and food security issues and much of it could be construedto support GIAHS. For instance, paragraph 40(r) appears to provide a directmandate for the GIAHS project (and other less focused practices) and requiresmembers to:

Promote the conservation, sustainable use and management of traditional and in-digenous agricultural systems and to strengthen indigenous models of agriculturalproduction.

12 UN General Assembly, REPORT OF THE CONFERENCE OF ENVIRONMENT AND DEVELOPMENT (Rio) Annex IIINon-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management,Conservation and Sustainable Development of All Types of Forest.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

136 HARROP

The Declaration also directly supports indigenous and community-basedforest management systems to ensure their full and effective participation insustainable forest management (45(h)). This provides further internationalsupport for crucial areas of forest management that to an extent and in-consistently have been seen to conflict with ecocentric approaches to for-est stewardship. GIAHS provides a vehicle to resolve the conflict by sup-porting crucial technologies that maintain both biological and agriculturaldiversity.

The Declaration in 26(e) also refers to the importance of non-conventional water resources and conservation technologies so often prevalentin GIAHS and which can enable not only agricultural diversity to flourish inarid zones but also, through the ancient nature of some of the water conserva-tion practices, facilitate the existence of havens for unique biodiversity.

2.4. United Nations Millennium Declaration13

The Millennium Declaration and the Millennium Development Goals sup-port GIAHS in a number of ways both directly and incidentally. The inter-relationship between all of the goals and the need to ensure environmentalsustainability is clear.14 Apart from the general propensity of GIAHS to dealwith gender issues, eradicate poverty and hunger, provide access to water, andso on, the most obvious area of synergy is linked to MDG 7: to ensure envi-ronmental sustainability. Specific tasks therein relate to forest cover (Indicator25) and expanse of biodiversity (Indicator 26) which are directly supportedby traditional GIAHS systems. MDG 8: to develop a global partnership fordevelopment is also relevant to the multilateral trade issues discussed later.

There is some visible evidence, in the supporting papers of task forcesrelating to the Millennium Development Goals, of the relevance of GIAHS-type traditional knowledge. The two following statements are found in thesummary of the final report of Task Force 6.15

Around the world agricultural systems are increasingly vulnerable to overuse, in-appropriate practices, and altered weather patterns. The task force recommendsincreasing the use of sustainable agriculture techniques to preserve natural assets,restoring and managing desertifed lands, and protecting surrounding natural habitat.(p. 15)

13 UN General Assembly Resolution 55.2.14 See generally: Interim Report of Task Force 6 on Environmental Sustainability (Coordinators

Yolanda Kakabadse-Navarro Jeff McNeely Don J. Melnick) at www.unmillenniumproject.org/documents/tf6interim.pdf.

15 Don Melnick, Jeffrey McNeely, Yolanda Kakabadse, et al. ENVIRONMENT AND HUMAN WELL-BEING: APRACTICAL STRATEGY (summary version) (2005). UN Millennium Project Task Force on EnvironmentalSustainability, www.unmillenniumproject.org/who/task06.htm.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 137

Increase the use of sustainable agriculture techniques to preserve natural assets:

� Protect and improve soils, including enhanced carbon sequestration.� Use water sustainably.� Maintain crop genetic diversity.� Mobilize local knowledge and experience.� Improve crop research, management storage, and use.� Restore and manage decertified lands.� Adopt prevention strategies to protect arid ecosystems.� Mobilize information and technology.� Protect surrounding natural habitat.� Rationalize land-use planning.� Set up systems of communal ownership and management rights. (p. 17)

Taken together, these extracts may not be intended to refer directly toGIAHS but it is clear that GIAHS may exemplify these qualities and thatthe concept could contribute towards fulfilling this aspect of the MillenniumDevelopment Goals. Further, by preserving GIAHS, that knowledge becomesavailable to be applied piecemeal or in its totality in order to contribute to thefulfillment of the goals in situations where GIAHS do not take place but theapplication of that knowledge can assist nevertheless to fulfill aspects of theMillennium Development Goals Declaration.

Some of the recommendations in the extracts from the Task Force finalreport are also relevant to suggest emphases that are needed to support GIAHSsuch as the establishment of communal ownership systems, the rationalizationof land-use planning, and the protection of natural habitat surrounding GIAHSlocations.

2.5. Conventions and Instruments Dealing with Conservationof Natural Resources/Land Practices and Protected Areas

2.5.1. The Convention on Biological Diversity

The text of the convention supports the concept of GIAHS in a numberof articles dealing with specific areas. These will be examined briefly, in turn.However, the preamble and Article 8(j) describe a wider remit of support andan extensive analysis is required.

While expressly maintaining respect for the sovereignty of states,16 thepreamble recognizes

. . . the close and traditional dependence of many indigenous and local communitiesembodying traditional lifestyles on biological resources, and the desirability of shar-ing equitably benefits arising from the use of traditional knowledge, innovations andpractices relevant to the conservation of biological diversity and the sustainable useof its components.

16 Article 3 CBD.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

138 HARROP

Whereas not all of the components of GIAHS are present in this state-ment, its nature as an overview is clearly important and supports key principleswithin the concept. Article 8(j) of the CBD takes these principles further and,in terms of promoting GIAHS, is the most relevant principle in internationallegislation. Indeed it could be interpreted to support every aspect of GIAHS,although it is recognized that it has a different emphasis particularly becauseits central concern is biodiversity not agricultural bio-diversity or the inciden-tal but related subject of agricultural heritage.

Article 8(j) and the Convention on Biological Diversity

Article 8(j), accompanied by the chapeau to the Article, states as follows:

Each Contracting Party shall, as far as possible and as appropriate:(j) Subject to its national legislation, respect, preserve and maintain knowl-

edge, innovations and practices of indigenous and local communities embodyingtraditional lifestyles relevant for the conservation and sustainable use of biologicaldiversity and promote their wider application with the approval and involvement ofthe holders of such knowledge, innovations and practices and encourage the equitablesharing of the benefits arising from the utilization of such knowledge, innovationsand practices;

A linked article 10(c) should also be cited at this stage, again accompaniedby its chapeau:

Each CONTRACTING Party shall, as far as possible and as appropriate:(c) Protect and encourage customary use of biological resources in accordance

with traditional cultural practices that are compatible with conservation or sustainableuse requirements

General Points Concerning 8(j) and 10(c)

Both articles support most aspects of GIAHS just as the concept ofGIAHS is capable of fulfilling many aspects of these articles. 10(c) can beconstrued to directly support agricultural diversity and the type of practicesthat comprise GIAHS. However, there are systems which could conceivablyfall outside the remit of 8(j) (and to an extent 10(c)). Thus a valid GIAHSsystem may have evolved from, but no longer embodies, an exclusively tra-ditional lifestyle within the scope of the article. Further, there is a differencein emphasis and objectives. Article 8(j) is in the section of the CBD dealingwith in situ conservation of habitats and species in range states and the strate-gic conservation of specifically protected areas. The emphasis of the GIAHSconcept encompasses this objective but is somewhat broader in its focus onnatural, cultural and agricultural diversity. These differences in emphasis re-sult, for the most part, in GIAHS systems forming a subset of the practicescontemplated by Article 8(j).

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 139

However, despite the unequivocal inclusion of agricultural diversitywithin the term biological diversity,17 it is also conceivable that a GIAHSexample could be in conflict with the requirements of Article 8(j) where thevolition to preserve agricultural diversity has the potential to conflict with thevolition to preserve “natural” biodiversity. An example of such a conflict isbest illustrated by reference again to traditional shifting cultivation methodsadjacent to primary rainforest. Whereas primary rainforest may consist of highnatural diversity, the secondary forest remaining following shifting cultivationpracticed in primary forest is likely to possess a high level of agricultural di-versity. From the perspective of the agriculturalist the secondary forest mightbe a priority target for preservation whereas the primary forest would be thetarget for the conservationist.

This dissonance created by conflicting priorities is not resolved by thetext of the CBD in a manner that would satisfactorily support measures topreserve agro-biodiversity. Practice and the prevailing interpretation of theCBD would result in the demotion of agricultural diversity to a subservientposition. This is not surprising since the preponderance of global agriculturalpractices (in contrast to the practices within GIAHS) have eradicated or cur-rently threaten biodiversity. Thus intensive practices have forced the clearanceof wild, diverse areas to make way for monocultures and have exacerbated soilerosion; created soil toxicity through an imbalanced use of natural fertilisers;polluted land, water, and ecosystems through the use of pesticides and alsoremoved incentives for the persistence of local supportive culture and thuscontributed to eradicating traditional practices that enhance the conservationof biodiversity.

A number of decisions of the CBD are addressing the positive effectsthat some agricultural practices have in a number of ways particularity inthe context of the CBD’s joint ventures with the UN FAO. In particular, ithas established a multi-year program of activities on agricultural biologicaldiversity. The aims of this work programme include, inter alia:

17 Whereas the definition biological diversity would, by any ordinary interpretation, include diversity inand deriving from agriculture; the position is beyond doubt through an analysis of Article 2 (Use ofTerms) of the CBD as follows:

In that Article the definition of biological diversity includes the variability amongliving organisms from all sources. Biological resources (which include a sub-set ofgenetic resources) are included within biological diversity and are defined to haveactual or potential use or value for humanity. The definition of country providinggenetic resources specifically refers to domesticated species which necessarily con-notes species in agriculture also bearing in mind that they are necessarily and directlyuseful/valuable for humanity.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

140 HARROP

1) to promote the positive effects and mitigate the negative impacts of agriculturalpractices on biological diversity in agro-ecosystems and their interface with otherecosystems;

2) to promote the conservation and sustainable use of genetic resources of actual orpotential value for food and agriculture; and

3) to promote the fair and equitable sharing of benefits arising out of the utilisationof genetic resources (decision III/1, paragraph 1).18

However, there is no visible attempt to resolve the dilemma of prioritiesbetween natural and agro-biodiversity when the preservation of the two mayseem to conflict.

Therefore, the allocation of priorities to preserve wild genetic resourcesas opposed to agricultural genetic resources (often the prime product of GI-AHS) requires examination. In principle the CBD supports the concept of thepreservation of agricultural genetic resources in numerous respects. (See, forexample, the provisions dealing with: access regulation, benefit sharing, ca-pacity building, the support of rural and indigenous conservation, the creationof protected areas, the balance between ex situ and in situ conservation, andthe establishment of funding facilities.)

However, yet again, there are unresolved issues within the CBD, inthat its primary focus is on the entirety of the diversity of natural resources.The conservation of wild genetic resources and agricultural genetic resourcesoften requires different and, indeed conflicting strategies. Such conflicts couldfrustrate or freeze country implementations of the CBD, as they affect thegenetic resources deployed or arising through the operation of GIAHS, orcause inconsistent approaches to implementation through non-harmonizedstrategic conservation priorities.

The CBD defines domesticated or cultivated species and contains somespecific provisions designed to preserve their diversity. However, the prioritiesare weighted to preserve wild species.19 National implementation of the CBDmay, therefore, tend to focus on the preservation of wild rather than agricul-tural genetic resources and, indeed, there is evidence that in some countriesthe CBD’s implementation has had minimal impact on the improvement orcreation of policies or legislation to preserve, conserve, and develop these ge-netic resources.20 Therefore, a harmonization of approaches may be requiredto secure that national conservation laws and policies integrate priorities inrespect of wild and agricultural species and also implement programmes for

18 CONVENTION OF BIOLOGICAL DIVERSITY CONFERENCE OF THE PARTIES DECISION III/11 - Conservation andSustainable Use of Agricultural Biological Diversity. See also Decisions: IV/6, V/5, VI/5, VII/3, andVIII/23.

19 The emphasis for identification and monitoring for instance in Article 7 and Appendix 1 CBD is on wildrelatives of domesticated or cultivated species.

20 FAO REPORT ON THE STATE OF THE WORLD’S ANIMAL GENETIC RESOURCES FOR FOOD AND AGRICULTURE.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 141

the preservation of local and endemic breeds/populations/races and the land-scapes and systems in which they have developed their distinctive properties.21

There is scope to resolve these issues even within the limitations of theexisting text of the CBD. The convention is a framework convention and theclauses examined must necessarily must be read at this level. A working partyof the CBD is currently examining the more detailed implementation of theprovisions of 8(j),22 and a number of previous discussions have taken placeat conferences of the parties. In addition, the CBD secretariat has produced aprofusion of policy papers concerning the implementation of the article.23

The appearance of an article dealing with human traditional practicesin the context of biodiversity conservation stresses the key role that indige-nous and rural communities must have in participating in the implementationof strategies for conservation and reflects a new, enlightened internationalregulatory approach.24 The concept of GIAHS epitomises the practical imple-mentation of this dynamic.

An initiative to produce a protocol to the convention or some otherinstrument dealing with, inter alia, the GIAHS concept would be a practicalway forward to put appropriate flesh on the bones of Article 8(j) and a jointventure between the UN FAO and the CBD in this respect would be the vehicleto achieve this.

There are some specific aspects of Article 8(j) that require examinationin more detail.

National Legislation

The concept of GIAHS and its preservation may face considerable obstaclesin some national jurisdictions from the manner in which land rights (and par-ticularly native title) are decided and from conservation policies that excludepeople carrying out traditional practices within protected areas. Whereas itwould be expected that parties should implement an international commitmentin their national legislation and thus alter their national regime, Article 8(j) isexpressed to be subject to national legislation. Bearing in mind the frameworknature of the clause, and the imprecise drafting, this qualification appears to besuperfluous. This idiosyncratic approach may be inevitable, however, havingregard to the depth of political feeling concerning this general issue. This partof the article attempts to honour the sovereignty of states and at the same time

21 See, for the author’s choice of words in this respect: CBD - Article 2 – Definition of in situ Conservation.22 This was established following the 4th CONFERENCE OF THE PARTIES OF THE CBD. (Decision V/16: Article

8(j) and Related Provisions.)23 See, for example, CBD Decision COP III/14.24 See UNEP/CBD/COP/3/19 KNOWLEDGE, INNOVATIONS, AND PRACTICES OF INDIGENOUS AND LOCAL COMMUNI-

TIES: IMPLEMENTATION OF ARTICLE 8(j) (Note by the Executive Secretary) para 8.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

142 HARROP

secure the well being of peoples (and indeed habitats and species) behind theveil of sovereignty.

It may be that, by the use of these words, the CBD attempts to avoidconfronting the difficult question concerning claims for restitution of indige-nous and other traditional territories.25 In consequence the clause cannot bea mandate alone for returning deposed peoples to protected areas or givingback to them the rights they enjoyed prior to conquest or colonisation in theinterests of preserving GIAHS. However, the clause would be meaningless ifit dictated that national law (whether presently or prospectively promulgated26)simply overrides the requirements in the article especially in the case wherenational law is diametrically opposed to the article’s key principles. A betterinterpretation is that the article must be implemented in a manner that con-forms to national law principles. One advocate of indigenous peoples’ rightsstates the position as follows:

Contracting Parties cannot remain inactive, but must make all efforts to do justice tothe objectives of article 8(j).27

Respecting, Preserving, and Maintaining Knowledge, Practices, etc.

The words as a whole endeavour to secure more than an archival remnantof the knowledge, innovations, and practices referred to. The reference tomaintenance suggests a continuation of the evolution and development ofsuch knowledge and practices. The Article clearly implies the preservation ofthat aspect of living knowledge that is relevant, if not crucial, for contemporaryconservation strategies. Thus, living examples of GIAHS would in part fulfilthe intent of this article.

The word respect is both helpful from a policy perspective but somewhatobscure from a legal point of view. Politically, it connotes the perpetuation

25 By using this approach it can also protect existing, beneficial national regimes that extend some protectionto the indigenous and rural peoples envisaged in this article. As the CBD Executive Secretary has stated:

In keeping with the general orientation of the Convention, this provision leaves it upto individual countries to determine how it will be implemented. In addition, Article8(j) subjects its obligations to national legislation implying that existing nationallegislation will take precedence. UNEP/CBD/COP/3/19 KNOWLEDGE, INNOVATIONS,AND PRACTICES OF INDIGENOUS AND LOCAL COMMUNITIES: IMPLEMENTATION OF ARTICLE 8(j)(Note by the Executive Secretary) Para 14.

26 See Lyle Glowka, Francoise Burhenne-Guilmin, Hugh Synge. A GUIDE TO THE CONVENTION ON BIOLOGICAL

DIVERSITY (1994). IUCN Environmental Policy and Law Paper No. 30, p. 48.27 L Gundling Implementing Article 8(j) and Other provisions of the Convention on Biological Diversity to

Strengthen the Legal Positions of Indigenous and Local Communities COICA (Co-Coordinating Bodyof Indigenous Organisations of the Amazon Basin), Quito, Ecuador.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 143

of indigenous culture by actively teaching it and by deploying the knowledgeholders as teachers, conservation policy makers, and so on.28 In short, it isunderstood by the CBD policy makers to mean that

Relevant traditional knowledge should . . . . . be accorded a status in national lifecomparable to that shown to scientific knowledge.29

It also connotes respect for the peoples who developed and maintain thepractices referred to which in turn implies supporting them through capacitybuilding and so on.

However, it is difficult to transmute the word’s connotations and potentialcommitments into absolute legal commitments and this word must thereforebe seen as a catch-all in negotiations which will be the route to achievingsome of the goals of conservation and indigenous peoples lobbyists. In thecontext of GIAHS, the phrase would support a national respect for livingexamples of GIAHS through, inter alia, protecting aspects of the wisdom ofthese practices in national curricula as aspects of national (if not international)heritage and through seeking to understand the different paradigm in whichtraditional knowledge subsists.

Preservation and maintenance require the immediate protection fromloss of the relevant practices. Further, maintenance suggests that practices areindeed carried out rather than displayed in tourist parks. The context of thearticle in the in situ conservation section of the CBD reinforces this contention.Further, the article must also be read in conjunction with Article 10(c) whichis within the convention’s section entitled Sustainable Use of Components ofBiological Diversity. Thus both articles contemplate a dynamic persistence ofcustomary practices that support biodiversity.

Reflecting on the joint construction of these Articles, the Executive Sec-retary of the CBD has taken the potential impact much further into sovereignterritory:

Taken together, these provisions therefore require Parties to recognize that biologicaldiversity is maintained, and very often enhanced, by the knowledge, innovationsand practices of indigenous and local communities and that the preservation andmaintenance of biological diversity goes hand in hand with the preservation andmaintenance of cultural diversity. In order that indigenous and local communitiesmay continue to maintain and develop their knowledge, innovations and practices(in other words, are able to ensure their cultural survival), they need secure access tothe basis of such biological diversity and its components in their traditional lands.30

28 UNEP/CBD/COP/3/19 Knowledge, Innovations and Practices of Indigenous and Local Communities:Implementation of Article 8(j) (Note by the Executive Secretary) Para. 65.

29 UNEP/CBD/TKBD/1/2 Traditional Knowledge and Biological Diversity (Note by the Executive Secre-tary) Para. 83.

30 UNEP/CBD/COP/3/19 Para. 60.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

144 HARROP

. . . The need for Governments to recognize and guarantee rights to land for indige-nous and traditional communities is thus a prerequisite both for the preservation andmaintenance of the knowledge, innovations and practices referred to in Article 8(j),and for the protection of customary use of biological resources referred to in Article10(c). 31

The reinstatement of traditional land rights where conservation is therebybenefited is a controversial issue in relation to the purpose and extent of thisArticle. It remains to be seen whether signatories to the CBD will be willing toimplement it to this extent. However, these commentaries and interpretationsclearly support GIAHS.

Communities Embodying Traditional Lifestyles Relevant for Conservation

Obviously the reference to both indigenous and rural communities, definedby emphasising the nature of their knowledge and practices, is an approachwhich firmly focuses on conservation rather than entangling the article inthe fine details of the definition of indigenous peoples. This can only assistthe case for GIAHS. First, not all rural communities exercising GIAHS willbe indigenous. Second, since the ethnicity of a community that carries outGIAHS practices may be fluid, it might be appropriate to keep the concept ofGIAHS unfettered by connections to definitions of indigenous.

For the most part, by dealing with indigenous and traditional communi-ties and not distinguishing between them, the Article supports a wider gamutof GIAHS systems. As will be seen, however, certain international legal andpolicy instruments regulate the manner in which nations deal with indigenouspeople. Those who are not within this category (as defined by the particularinstrument), but who nevertheless operate GIAHS, cannot claim the benefitsextended by this legislation.

Benefit Sharing

The parties are required to encourage the equitable sharing of benefits derivingfrom the application of the practices and knowledge described within theArticle. This word does not establish a strong legal obligation and may wellresult in the choices being left to the whims of market forces. For GIAHSto be effective there needs to be a process of capacity building and equitablesharing of benefits deriving from GIAHS that go beyond the self-supportingnature of communities deploying such systems. This is a wider topic thatrequires detailed text in any regulatory instrument dealing with the subject ofGIAHS.

31 Ibid. Para. 61.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 145

A voluntary initiative to amplify the principles in the CBD dealing withthis aspect is contained in the Bonn Guidelines on Access to Genetic Resourcesand Fair and Equitable Sharing of the Benefits Arising out of their Utilisation.32

This document details the involvement of stakeholders particularly in thecontext of intellectual property rights in traditional ecological knowledge anddevelops the meaning of prior informed consent. Thus, although the emphasisof the guidelines is not entirely relevant to the concept of GIAHS, someimportant principles are enunciated therein which could be relevant in thedesign of aspects of a regulatory instrument to facilitate the protection ofGIAHS.

Protected Areas in the CBD

The CBD acknowledges the need to conserve biological diversity whetherwithin or outside protected areas33 and Article 8(j)’s support for GIAHS is notlimited to systems operating in designated areas. In many cases traditionalagricultural systems operate within buffer zones adjacent to core protectedareas in which human agriculture use is prohibited. Article 8(e) specificallysupports practices that would include GIAHS through the promotion of

environmentally sound and sustainable development in areas adjacent to protectedareas with a view to furthering protection of these areas.

The categorization of protection surrounding strictly protected areas pro-vides a useful vehicle for supporting the practices contemplated by Article8(j) and more particularly the concept of GIAHS. However, more detail isneeded in legislation or multilateral policy instruments and a category forGIAHS areas, whether included within a wider concept of traditional usezone or other defined category, is required. A serious point of departure, how-ever, is that GIAHS cannot be restricted to secondary buffer zones. To do sowould compromise the importance of these agricultural systems. The conceptperceives the GIAHS operations as paramount and a GIAHS protected areawould secure that the main, active interface of humans and the environmentwould take place in the core zone itself.

2.5.2. IUCN

IUCN has created a detailed classification of protected areas and a bodyof policy informing other initiatives has been formed thereby. The system

32 UNEP/CBD/COP/6/20, p. 262, VI/24. Access and Benefit Sharing as Related to Genetic Resources.33 Article 8(c) CBD.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

146 HARROP

designed would accommodate and support a specific initiative to define aGIAHS category in other instruments although the focus is necessarily onbiodiversity rather than agricultural heritage. A key aspect of the classificationsystem emphasises the link between human use of resources and biodiversitywithin a protected area. The system descends in categories from a strictprotection of natural processes (that is to say, areas not materially altered byhuman activity34) to areas where societies live in harmony with the environmentin a manner undisturbed by modern technology,35 and on to areas sustainablyused but which support nature conservation.36

Category V may be the most relevant to GIAHS although certainly nota perfect match. It is described as follows:

Protected Landscape/Seascape: protected area managed mainly for landscape/seascape conservation or recreation—area of land, with coast or sea as appropri-ate, where the interaction of people and nature over time has produced an areaof distinct character with significant aesthetic, ecological, and/or cultural value,and often with high biological diversity. Safeguarding the integrity of this tradi-tional interaction is vital to the protection, maintenance, and evolution of such anarea.

2.5.3. Biosphere Reserves

UNESCO’s Man and Biosphere program comprises, despite its designa-tion as the Statutory Framework of the World Network of Biosphere Reserves, asystem of soft law whereby a network of Biosphere Reserves has been createdthroughout the world. These include zoned protected areas that specificallytake into account the integration of the social, the economic, and the naturalas they move from the center to the outside of the reserve area. The approachclearly encompasses support for the GIAHS concept and, as MAB’s ownwebsite states:

People in many parts of the world have devised, over a long period of time, inge-nious land-use practices which do not deplete the natural resources and which canprovide valuable knowledge for modern production systems. Biosphere reserves areareas where such peoples can maintain their traditions, as well as improving theireconomic well-being through the use of culturally and environmentally appropriatetechnologies.37

34 IUCN Protected Areas Management Categories: National Park (2).35 Ibid., Anthropological Reserve/Natural Biotic Area (7).36 Ibid., Multiple Use Management Area/Managed Resource Area (8).37 http://www.unesco.org/mab/nutshell.htm

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 147

Despite being soft law, the regime expressly requires some legal protection38

and national law has been generated as a result of application of the programin a number of areas of the world.39

Where a GIAHS example is present in a MAB reserve, it should besupported and preserved through specific inclusion in management plans andsupporting national law where applicable. The current strategy40 for MABreserves includes a number of statements that would explicitly lend supportto the GIAHS concept. The strategy includes the desire to make MAB reflectmore fully the human dimensions of biosphere reserves. It also stresses theneed to make connections between cultural and biological diversity . . . andneed to recognize the role of traditional practices in sustainable development.

GIAHS could work directly with the MAB program to integrate GIAHSmore closely therein or could consider emulating the MAB device by creating asimilar, soft but statutory, framework to govern a world-wide GIAHS program.This option may be a less diplomatically complex and speedier process thanthe creation of a protocol or convention, although it would lack the obligatorystatus of a fully empowered legal mandate. If The GIAHS project were toconsider creating a policy regime it would, of course, have certain differencesto the standard MAB approach. GIAHS would not be restricted to operationsin secondary rather than core zones. Moreover, GIAHS concentrates first onthe “system” rather than on the area or landscape.

2.5.4. RAMSAR

The Convention on Wetlands of International Importance 1971(RAMSAR),41 does not specifically mention human land practices in its text,however, its preamble emphasises the interdependence of man and his en-vironment. The prevailing principle applied in RAMSAR to conservation ofwetlands is wise use, which is interpreted as being synonymous with sus-tainable use.42 Therefore, the human element in conservation is impliedlypervasive in the text. RAMSAR does not prescribe a great deal of control overwetlands as a whole, indeed it only requires its members to designate one site

38 See Article 4.5(a) UNESCO, MAB Programme, Statutory Framework of the World Network of BiosphereReserves.

39 In Mexico, for example, Biosphere Reserves are protected by the Ley General del equilibrio Ecologico yla Proteccion al Ambiente Titulo segundo, Capitulo 1, Seccion 1, articulo 48 (DOF 1988, 1996). Althoughthe definition in Mexican law has resulted in some sites, not yet recognised by the MAB program, beingincluded within the national law’s definition and others which are recognised internationally beingexcluded. (See: http://www.oceanoasis.org/conservation/status.html.)

40 Evolved at: The International Conference on Biosphere Reserve, organised by UNESCO in Seville,Spain, on 20–25 March 1995.

41 The amended, current text is available at the RAMSAR website: http://www.ramsar.org.42 As defined by Ramsar COP3 (1987), wise use of wetlands is “their sustainable utilisation for the benefit

of mankind in a way compatible with the maintenance of the natural properties of the ecosystem.”

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

148 HARROP

for the RAMSAR List. Nevertheless, RAMSAR remains relevant since manyGIAHS systems operate in or adjacent to wetlands.

Beyond the main text, RAMSAR has established principles entitled,Guidelines for Establishing and Strengthening Local Communities’ and In-digenous People’s Participation in the Management of Wetlands.43 These prin-ciples do not create binding obligations on RAMSAR members and, indeed,they acknowledge the difficulty of tailoring laws to the complex variety ofcommunity conservation activities and as a result of that do not add spe-cific guidance which may be obviously assimilated to support the GIAHScase:

It is not possible to provide a definitive list of criteria that will guarantee successfulestablishment of local and indigenous people’s involvement. The breadth of the term“involvement” (from consultation to devolution of management authority) and thevariety of local contexts means that there are few if any prerequisites to establish-ing participatory management. One consistent factor, however, is the possession ofbeliefs and values that support the Ramsar concept of “sustainable utilization.”44

Beyond this cautious note and the fact that many of the guidelines arenot directly relevant, there are some precise emphases which are recordedherein. Guideline 15.q states:

When involving local and indigenous people in the participatory process [of wetlandmanagement], those who facilitate or coordinate such efforts should:

Support the application of traditional knowledge to wetland managementincluding, where possible, the establishment of centres to conserve indigenous andtraditional knowledge systems.

Other provisions within the guidelines include the need to establishpositive capacity building and knowledge exchange45 and the specification ofclear incentives and economic stakes and benefits.46

In a further document entitled Guiding Principles for Taking into Ac-count the Cultural Values of Wetlands for the Effective Management of Sites,47

a number of relevant guiding Principles are as follows:

43 Adopted as an annex to Resolution VII.8 at the 7th MEETING OF THE CONFERENCE OF THE RAMSARPARTIES, San Jose, Costa Rica, 10–18 May 1999. These guidelines derive from Recommendation 6.3 ofRAMSAR COP 6 (1996) which called upon the parties to make specific efforts to encourage active andinformed participation of local and indigenous people at Ramsar listed sites and other wetlands and theircatchments, and their direct involvement, through appropriate mechanisms, in wetland management.

44 Ibid., para. 6.45 Ibid., para. 13.46 Ibid., para. 17.47 Resolution VIII. 19 at Wetlands: Water, Life, and Culture, 8TH MEETING OF THE CONFERENCE OF THE

CONTRACTING PARTIES TO THE CONVENTION ON WETLANDS (Ramsar, Iran, 1971) Valencia, Spain, 18–26November 2002.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 149

• 5 - To maintain traditional sustainable self-management practices.• 11 - To safeguard wetland-related traditional production systems.• 15 - To maintain traditional sustainable practices used in and around

wetlands, and value the products resulting from these practices.• 26 - To consider the possibility of using quality labelling of sustainable

traditional wetland products in a voluntary and non-discriminatorymanner.

These principles are general and flexible enough in all cases to support aspectsof GIAHS provided the GIAHS system is supportive of wetland conservation.

Principle 26 relates to a different area: that of labelling and by implicationthe status of products deriving from GIAHS systems within the open marketsof the multilateral trade regime. This issue will be dealt in the second articlein this series.

2.5.5. World Heritage Convention

With its approach to preserving cultural and natural heritage and withits particular emphasis on outstanding universal value (a parallel perhapsto remarkable but by no means synonymous with the term) this conventionwould seem to be a useful vehicle for the support of GIAHS. Although thedefinitions in Articles 1 and 2 of the text of the convention do not expresslylend support to the type of landscape envisaged within the GIAHS conceptthey are fluid enough to permit development in this area.

Thus the Convention’s Operating Guidelines were amended in 1992 topermit the inclusion of World Heritage Cultural landscapes on the WorldHeritage List and increasingly the nominations for this category include agri-cultural sites. A number of examples of these landscapes already on the WorldHeritage List would certainly fall within the GIAHS definition and it is alsointeresting to note that some of the expert meetings held within the auspicesof the WHC have dealt specifically with agricultural landscapes.48

It is clear that the GIAHS project should collaborate with the WHCin any event but there are limitations to such collaboration. The need foroutstanding universal value limits the sites that can be protected and the WHCdoes not deal with the totality of the issues which are examined herein asrelevant to GIAHS and does not have the same volition or focus. However,the vehicle is there for collaboration at both the legal instrument and policylevel.

48 See, generally, UNESCO World Heritage Centre background Document on UNESCO WORLD HERITAGE

CULTURAL LANDSCAPES. Prepared for the FAO WORKSHOP AND STEERING COMMITTEE MEETING OF THE

GIAHS PROJECT: GLOBALLY IMPORTANT INGENIOUS AGRICULTURAL HERITAGE SYSTEMS, by Dr. MechtildRossler. This document provides a comprehensive overview of the subject from a WHC perspective.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

150 HARROP

2.5.6. Multi-Protection

Many sites receive multi-designation and RAMSAR, World Heritageand MAB apply their designations to the same area or overlap with eachother in a number of instances. Cooperation takes place at many levels in thisrespect and the effect of multi-designation should not preclude the protectionof GIAHS in the management plans related to these areas.

2.5.7. Other Conventions

A number of other international instruments deal with protected areasbut without detailing practices in buffer zones or expanding on human useof land in or adjacent to protected areas. These are not dealt with because oftheir marginal relevance to GIAHS.

2.5.8. The Convention to Combat Desertification in Those CountriesExperiencing Drought and/or Desertification, Particularlyin Africa49 (CCD)

A number of GIAHS systems operate in arid and semi-arid areas de-ploying ingenious and sophisticated methods to utilise the land and naturalresources.50 The CCD deals generally with the need to combat drought anddesertification and does not directly support GIAHS although a number ofprovisions lend indirect support.

Some of the relevant provisions are as follows:

• Article 5(c) examines the socio-economic factors. GIAHS providesa community approach to solving the problems of drought and istherefore indirectly relevant.

• Article 5(e) provides for an enabling environment to strengthen reg-ulations to support work to combat drought. Where it can be shownthat a GIAHS system could assist to combat drought, this sub-articlecould be used to support particularly extensions of national laws tosupport such systems.

• Articles 10.2(e) and (f) promote involvement of communities, farm-ers and pastoralists. GIAHS communities would be inevitably in-cluded in these groups.

• Articles 10.3(c), (d), and (e) promote the strengthening of food se-curity systems, alternate livelihood projects in drought-prone areas,and the development of sustainable irrigation programs (all of whichare relevant to GIAHS).

• Article 10.4 supports sustainable agricultural programs.

49 A/49/84/Add. 2, annex, appendix II.50 Supra note 7.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 151

• Article 17 requires the parties to cooperate in relevant research anddevelopment and 17(c) in particular supports the GIAHS conceptmore explicitly in that it requires the parties to support research ac-tivities that:

protect, integrate, enhance, and validate traditional and local knowledge,know-how, and practices, ensuring, subject to their respective nationallegislation and/or policies, that the owners of that knowledge will directlybenefit on an equitable basis and on mutually agreed terms from anycommercial utilization of it or from any technological development derivedfrom that knowledge;

This sub-article would support research into GIAHS to the extentthat its methods combat drought and otherwise fulfil the objectivesof the CCD. Whereas it does not expressly support the maintenanceof the knowledge this is surely implied having regard to the generalpurpose and other provisions of the convention. The owners of theknowledge are directly to benefit from its use although identifyingthe precise nature of the ownership of traditional knowledge is not astraightforward matter. (This point will be examined in the context ofintellectual property in the second article in this series.)

• Article 19 deals with capacity building. In a general manner thisarticle could be used to support GIAHS communities in arid zones.

• Annex 1 includes a number of provisions promoting the developmentand support of local and diverse agricultural systems which couldsupport GIAHS.

2.5.9. The International Treaty on Plant Genetic Resources for Foodand Agriculture51

This treaty is primarily relevant to the intellectual property issues thatrelate to GIAHS. However, the text emphasises in situ conservation which ispertinent to the present examination.

The treaty deals only with plant genetic resources for food and agri-culture and thus where methods in GIAHS concern animal genetic resourcesthe treaty does not technically apply. However, the general provisions dealingwith in situ conservation necessarily must promote whole ecosystem man-agement, which perforce, promotes the protection of both plant and animalspecies.

Article 5 requires parties to promote an integrated approach to the ex-ploration, conservation and sustainable use of plant genetic resources for foodand agriculture.

51 Adopted through Resolution 3/2001 of the FAO conference of the parties.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

152 HARROP

There are a number of particular requirements leading on from thisgeneral statement, and the two most important for GIAHS are:

• 5.1(c) Promote or support, as appropriate, farmers and local com-munities’ efforts to manage and conserve on-farm their plant geneticresources for food and agriculture

• 5.1(d) Promote in situ conservation of wild crop relatives and wildplants for food production, including in protected areas, by support-ing, inter alia, the efforts of indigenous and local communities

5.1(c) confirms support for the robust and self-supporting nature of manytraditional systems including GIAHS. 5.1(d) describes in situ conservation byindigenous and local communities in areas including protected areas. Thisdirectly supports traditional systems including GIAHS. However, support forindigenous communities in practical terms may require that their land zonesare all protected areas to some degree. At the present time, many traditionalpractices are carried out in areas adjacent to protected areas that may constitutebuffer zones whether recognised as such or not. The lack of recognition cancreate legal difficulties.

Article 2 of the CBD defines protected area as:

a geographically defined area which is designated or regulated and managed toachieve specific conservation objectives

Buffer zones and traditional use zones adjacent to protected areas are thereforeprotected where, inter alia, appropriate regulatory regimes or official desig-nations are in place to secure their nature as buffers to the central protectedzone. Clearly, in specific zoned systems such as within the MAB program, allzones are protected, albeit to different degrees.

However, many key zones in biodiversity hot spots where potential GI-AHS sites may be found do not receive protection because they are not desig-nated or regulated as protected areas and because there may be disagreementabout whether their objectives are conservation objectives. Consequently, intropical rainforest areas, there may be samples of primary forest regulated asprotected areas. Whereas the ancient traditional use zones on their borders inwhich sophisticated shifting agriculture in bio-diverse secondary forest pre-vails, often receive no protection and even attempts to claim land rights bythe traditional communities may be frustrated by other stronger competinginterests. Without some degree of protected area designation the traditionalsystems operate precariously and may contravene single-focus laws designedto protect natural areas (primary forest, for example) that operate withoutan appreciation of traditional use of the forest and its positive consequence

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 153

for biodiversity or without the emphasis on the preservation of agriculturaldiversity prevalent in the treaty under discussion.52

Article 6 is also relevant in the GIAHS context. Its emphasis is on pro-moting the sustainable use of plant genetic resources for food and agricultureand in particular it promotes the maintenance of diverse farming systems thatenhance the sustainable use of agricultural biological diversity and other nat-ural resources (6.2(a)) and supports research into systems where, inter alia,ecological principles are applied in maintaining soil fertility and in combatingdiseases, weeds, and pests (2.2(b)). Both of there principles support aspectsof GIAHS in clear terms.

The remainder of the treaty is dealt with in the context of intellectualproperty dealt with in the following article.

2.5.10. General Points Concerning Conventions Dealing With Land Use

GIAHS is supported by, and supports many of the principles and objec-tives in, the CBD. A member state desiring to protect GIAHS could base anational law solely on the powers derived from a full implementation of theCBD provided that the appropriate detail was incorporated in the national lawin the manner discussed in the preceding analysis of Article 8(j). However,politically, this would be a great deal to expect from a member state withoutgreater elucidation of the requirements in an international instrument. The pro-visions of the CBD only provide a framework and comprehensive provisionsdesigned to facilitate the protection of GIAHS in an international instrumentwould provide a far more effective lever to effectively protect these systems.

In terms of protected area sites under MAB, RAMSAR, and WHC, eachregime has its own requirements and own definitions. These intersect with theconcept of GIAHS to an extent, but not comprehensively. Therefore, whereappropriate and acceptable within the jurisdiction of the relevant regime,GIAHS protection should be included in relevant management plans.

In terms of depending upon protected area regimes there are, however,two qualifications. First, the inclusion of GIAHS in a protected area regimemay in some cases compromise the objectives of the GIAHS. Many of theobjectives of protected area regimes relate to the conservation of naturallyoccurring resources. However, the objectives of GIAHS are wider and havetheir own unique focus and volition. By inter-mixing two differing concepts,there may be conflicts that will, in turn, result in GIAHS (with its non-legalauthority) being required to compromise as the weaker party.

52 The author is currently documenting this type of scenario in respect of zones in secondary rainforest,adjacent to protected primary forest, used by the Dusun communities in the Crocker Range, Sabah,Borneo. (G. Martin, M. J. Mohamed, J. Nais, et al. ETHNOBIOLOGY OF PROPOSED COMMUNITY USE ZONES

OF CROCKER RANGE PARK SABAH, MALAYSIA, Darwin Initiative Project, August 2004–July 2007. Researchresults ongoing and not yet published.)

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

154 HARROP

Second, the objectives of the WHC appear to coincide closely withaspects of GIAHS. However, because of the need to fulfil the requirementof outstanding universal value (which only partly equates with remarkable),there will be many examples of GIAHS not protected through the WHCapproach.

3. LAND TENURE, THE LAWS OF INDIGENOUS PEOPLES,AND RURAL COMMUNITIES AND HUMAN RIGHTS

3.1. Customary Law

For many communities carrying out GIAHS traditional practices, their systemswill be embedded within and dependent upon their wider cultural heritage.Traditional practices are dynamic and adaptive53 and, as a consequence, thesesystems are able to take advantage of developments generated internally andexternally.

However, the point at which tradition becomes non-traditional may befinely balanced in some cases, and dynamic does not necessarily connoteaccelerated changes that are so drastic as to erase all traces of the founda-tional practices. Tradition, according to some indigenous sources, is not onlydynamic but also self-determined.54 This facet of self-governance may be acrucial element to protect the traditional integrity of GIAHS practices and thusprevent the transition to a mere production-oriented contemporary practice.

More generally, a key facility for the control and integrity of GIAHStraditional practices may be provided by the customary governance prac-tices of the relevant community. Indeed, in some cases, systems may onlyeffectively operate within the parameters of a community’s customary legalsystem. These parameters may determine share of work, ownership of produceand seed stock, dispute settlement, rituals surrounding aspects of agriculturalwork, key decisions in the operation of the system, and so on. The customarylaws, just like the remainder of the traditions, may have evolved over a longperiod of time and thus have the same time-tested strength as the core GIAHSpractices and may be as integral to the practices as the nature of the land onwhich they are carried out.

In some cases, there are risks that customary legal systems are beingsupplanted by centralized state systems or are otherwise eroded and weakenedas a result of a wide range of contemporary pressures. Erosion of customarylaw regimes can endanger the structures that enable GIAHS examples to

53 K. Boven and J. Morohashi (eds.). BEST PRACTICES USING INDIGENOUS KNOWLEDGE (2002). Nuffic,Netherlands, and UNESCO/MOST, France at p. 12. F. Berkes, J. Colding, and C. Folke. Rediscov-ery of Traditional Ecological Knowledge as Adaptive Management. 10 ECOLOGICAL APPLICATIONS (2000).

54 Submission to the CBD Executive Secretary from the Four Directions Council, Canada, 15 January1996, quoted in UNEP/CBD/COP/3/19 para. 79.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 155

function by, inter alia, displacing unique, evolved approaches to land andresource ownership that secure aspects of the integrity of a GIAHS site.

In addition, the consequences of adapting and altering the legal paradigmwithin a community could also be that the community’s perception of the valueof local natural resources and habitats that are exploited by GIAHS may alsochange. This change of perception can convert a set of traditional practicesbased on a holistic view of a GIAHS system, embedded and supported by theenvironment, into the mere exploitation of natural resources as an agriculturalcommodity. The resultant over-emphasis on productivity may remove a keyfoundation of the traditional system.55

However, if a customary legal system is to remain in place, it mustfunction in the contemporary world and be capable of linking into higherregimes and policies. In particular, such regimes must conform to normsprescribing human rights and other minority protection requirements.56 Thismix of the traditional with the contemporary state system may be difficult toachieve. However, if sensitively handled, in the interests of the survival of thesystem, the result could provide a model for enlightened development.

The requirement to maintain traditional practices contemplated by Ar-ticle 8(j) could be partly fulfilled by protecting customary law regimes thatprovide structural support for such practices. Other instruments that specif-ically support the continuance of customary law regimes include Article 26of the UN Draft Declaration on the Rights of Indigenous Peoples and theInternational Labour Organisation (ILO) Convention 169. This convention isdealt with in more detail later, but for present purposes it requires due regardto customary laws in the application of state laws (Article 8.1). It also assertsthe right of the peoples affected by the convention to retain their laws andinstitutions so long as these are not incompatible with fundamental rights de-fined by the national legal system and with internationally recognised humanrights (Article 8.2).

Thus for GIAHS systems there is some international, legislative supportfor the maintenance of customary law subject to the protection of individualrights through supervening regimes within the state or beyond.

3.2. Land and Human Rights

GIAHS land practices invariably involve indigenous or rural communitiesworking in a traditional manner often in ancestral lands or lands otherwiseoccupied for many generations. One of the most sensitive areas of regulation

55 F Tongkul. TRADITONAL SYSTEMS OF INDIGENOUS PEOPLES OF SABAH, MALAYSIA; WISDOM ACCUMULATED

THROUGH GENERATIONS (2002). Pacos Trust, p. 61. See also Article 8.1 ILO 169.56 This point is made in the summary volume of the Eden Project: EVALUATING EDEN. See D. Roe, J. Mayers,

M. Grieg-Gran, et al. EVALUATING EDEN: EXPLORING THE MYTHS AND REALITIES OF COMMUNITY-BASED

WILDLIFE MANAGEMENT—SERIES OVERVIEW.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

156 HARROP

surrounding these practices concerns the nature of land ownership in GIAHSsites. Many potential GIAHS communities may not possess land tenure withinthe state system imposed over their internal customary laws. Further, their owncustomary systems may grant internally a species of land rights that is not inconformity with the dominant state system. The sensitivities and complexitiessurrounding this aspect cannot be overemphasised. There are numerous pres-sures exerted on the land used in GIAHS or other traditional systems, not onlyby the holders of land rights deriving from historical appropriation and regimechange, but also by competing issues. Indeed, there are many examples of theremoval of human communities from ancestral lands as part of the processof creating and controlling protected areas for conservation, either of naturalresources or of other forms of national heritage.57

There are also practical problems involved in determining native titleresulting from lost records, clashes between supervening legal systems andcustomary law (specifically concerning different approaches to defining landtenure), and the difficulties faced by officials when attempting to distinguishbetween genuine claimants and fraudsters.58

The issue of land tenure in relation to GIAHS cannot be over-looked.Where GIAHS practices operate within ancestral territories, some form ofsecure relationship with that land will be required (either by the grant of landrights or through transmission of the land to a state authority that controls theoperations on the site through management agreements and other regulatorydevices that are used in protected area management). Where the GIAHSexample involves peripheral activities in territories beyond the central GIAHSland (which may be regarded, nevertheless, as ancestral lands through thecustomary law of the community), these peripheral relationships with land willalso have to be legally acknowledged. Where the core operations of a GIAHSexample operates in secondary rainforest, for example, these latter rights maybe protected by direct grants but in addition limited rights permitting specifichunting and gathering activities (within the traditional and ancestral scope ofactivities of the GIAHS community) in adjacent protected primary rainforestmay also be appropriate. In this latter respect, the Anglo Saxon conceptof common rights (or profits a prendre held by a community) might be anappropriate model.59 Where such common rights are not required, some form

57 The establishment of Yellowstone National Park involved the forcible removal of the Tukarika Shoshonein order to meet the strict criteria of the existing concept of wilderness area. This “precedent” hascontinued to be followed in many instances. (See: Stan Stevens. CONSERVATION THROUGH CULTURAL

SURVIVAL: INDIGENOUS PEOPLES AND PROTECTED AREAS (1997)).58 This information is based on obstacles to the management of indigenous title claims described to the

author by officials in Sabah, Malaysia who were dealing with native title in the Crocker Range area,supra Note 52.

59 See: Stuart Harrop. From English moors and meadows to the Amazon rainforest: Land use, biodiver-sity management and forgotten law. In Mike Walkey, Ian R. Swingland, and Shawn Russell (eds.).

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 157

of protective tenure may still need to be established in buffer zones arounda GIAHS site in order to protect it from development that will degrade theoperation of the traditional practices.

“Hard” international legal instruments do not prescribe the precise man-ner in which secure relationships with land are to be granted to traditionalcommunities. The obvious complexity and variety of legal regimes, the ef-fluxion of time since colonization/conquest, issues of national sovereignty,along with many other factors, have politically frustrated forthright regula-tion. There are a number of relevant provisions within legal instruments, policydocuments, and draft instruments. These instruments deal restrictively withthe rights of indigenous and, in some cases, with tribal people. Consequently,some communities practicing GIAHS will not fall within the totality of theambit of these provisions.

3.3. Nature of Indigenous People in International Law

Both indigenous and non-indigenous traditional communities may operateGIAHS systems. It is necessary, therefore, to define indigenous people inorder to assess the extent to which international legislation may affect thevaried communities that may be involved in the GIAHS project. There are anumber of definitions in policy documents and elsewhere.60

The International Labour Organisation’s approach (in ILO Convention169) captures most of the ingredients in other definitions:

1. This Convention applies to:(a) Tribal peoples in independent countries whose social, cultural

and economic conditions distinguish them from other sections ofthe national community, and whose status is regulated wholly orpartially by their own customs or traditions or by special laws orregulations;

(b) Peoples in independent countries who are regarded as indigenouson account of their descent from the populations which inhabitedthe country, or a geographical region to which the country be-longs, at the time of conquest or colonisation or the establishmentof present state boundaries and who, irrespective of their legal

INTEGRATED PROTECTED AREA MANAGEMENT (1999). Stuart Harrop. Human Diversity and the Diversity ofLife—International Regulation of the Role of Indigenous and Rural Human Communities in Conserva-tion. 4 MALAYAN LAW JOURNAL (2003).

60 See: United Nations High Commissioners for Human Rights Fact Sheet No. 9 (Rev. 1); The Rightsof Indigenous Peoples Article 1(3) Draft of the Inter-American Declaration on the Rights of Indige-nous Peoples (approved by the Inter-American Commission of Human Rights on 18 September 1995.O.A.S. Doc. OEA/Ser/L/V/II.90, Doc. 9 rev. 1); JR Martinez Cobo STUDY OF THE PROBLEM OF DISCRIM-INATION AGAINST INDIGENOUS POPULATIONS, VOLUME V, CONCLUSIONS, PROPOSALS, AND RECOMMENDATIONS.E/CN.4/Sub.2/1986/7; Chapter 3 of James Anaya S. INDIGENOUS PEOPLES IN INTERNATIONAL LAW (1999).

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

158 HARROP

status, retain some or all of their own social, economic, culturaland political institutions.

2 Self-identification as indigenous or tribal shall be regarded as a fun-damental criterion for determining the groups to which the provisionsof this Convention apply.

3.4. International Instruments Dealing With Indigenous Rights inNatural Resources and Land

A number of instruments deal with aspects of tenure and other manifestationsof indigenous/traditional community-based rights or otherwise indirectly al-lude to these matters. However, only soft instruments prescribe restitution offull tenure.

3.4.1. Agenda 21

Some supportive texts appear in various chapters of Agenda 21; theseare summarized as follows.

• Chapter 26 - Recognizing and Strengthening the Role of IndigenousPeople and Their CommunitiesThis chapter urges governments, inter alia, to incorporate the rightsof indigenous peoples into national legislation and to permit themto actively participate in national law and policy-making concern-ing the management of resources. Whereas there is no reference torestitution of lands the chapter is supportive of a bundle of rightsfor indigenous peoples and, in respect of GIAHS sites which theyoccupy, the right to be involved in management and resource usedecision-making.

• Chapter 7 - Promoting Sustainable Human Settlement DevelopmentCountries are urged to strengthen community-based land-resourceprotection practices (7.30(e)) and to establish secure land tenure for,inter alia, indigenous people and other rural communities (7.30(f)).This is a key area developed in legislation and policy dealing withindigenous rights, although not dealt with in appropriate detail inlegislation dealing with conservation issues.

• Chapter 8 - Integrating Environment and Development in Decision-MakingIn planning and land-related decisions states are urged to delegatedecision making to the lowest level of pubic authority (8.5(g)). Thisis a central theme of many policy instruments but is not yet dealt within detail in relevant conservation legislation.

• Chapter 10 - Integrated Approach to the Planning and Managementof land Resources

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 159

10.7(d) Governments are specifically asked to strengthen manage-ment systems for land and natural resources by including appropriatetraditional and indigenous methods.

• Chapter 32 - Strengthening the Role of Farmers32.2 acknowledges indigenous and other rural families as stewardsof natural resources and 32.5 contains a set of useful principles forGIAHS paraphrased as:– Decentralise decision-making to the local level– Enhance land tenure, its use and access to it for women and other

vulnerable groups– Promote sustainable farming practices– Strengthen policies that encourage self sufficiency through, inter

alia, indigenous practices– Enhance the participation of farmers in policy-making when con-

cerned with these matters

3.4.2. The Forest Principles

The principles urge support for indigenous peoples living in forests,the provision of an economic stake in forest use, appropriate land tenurearrangements (5(a)), and equitable benefit sharing in relation to traditionalknowledge.

3.4.3. Johannesburg Declaration on Sustainable Development

The declaration mirrors the Forest Principles in article 45(h) where statesare urged to:

Support indigenous and community-based forest management systems to ensuretheir full and effective participation in sustainable forest management.

3.4.4. United Nations Millennium Declaration61

The summary of the final report of Task Force 662 of the UNMD projectprovides some incidental support for GIAHS in that it urges the use of sustain-able agriculture techniques to preserve natural assets. Aspects of the recom-mendations in the extracts from the Task Force final report are also relevant tosuggest emphases that are needed to support GIAHS such as the establishmentof communal ownership systems, the rationalization of land-use planning andthe protection of natural habitat surrounding GIAHS-type locations.

61 UN General Assembly Resolution 55.2.62 Don Melnick, Jeffrey McNeely, Yolanda Kakabadse Navarro, et al. ENVIRONMENT AND HUMAN WELL-

BEING: A PRACTICAL STRATEGY (summary version) (2005). UN Millennium Project Task Force on Envi-ronmental Sustainability 2005 www.unmillenniumproject.org/who/task06.htm.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

160 HARROP

3.4.5. Article 8(J) Convention on Biological Diversity

Article 8(j) avoids directly prescribing land ownership. (Perhaps the elu-sive references to national legislation previously referred to act as a safetynet for those member states that do not wish to resolve these issues infavour of indigenous peoples.) Nevertheless, it is clear that if traditional prac-tices of indigenous peoples are to be maintained, there must be land on whichto practice them and if the practices are to continue, basic human freedomsand aspects of the components that support human dignity may have to beacknowledged. The granting of land tenure must, therefore, be an inevitablematter for consideration.

3.4.6. Draft Declaration on the Rights of Indigenous Peoples63

The UN Draft Declaration on the Rights of Indigenous Peoples is aprecise, clear, and forthright document and emphasizes the importance ofits provisions by stating that even these are only minimum standards for thesurvival, dignity and well-being of the indigenous peoples of the world.64

The language in this draft document is unequivocal and makes it clearthat restitution of indigenous lands should take place. The following samplearticles summarise the approach. However, for communities operating GI-AHS, mere compensation for the loss of a GIAHS site within the terms ofArticle 27 would not support the persistence of a GIAHS site unless a similaroperation could be commenced ab initio.

• Article 25

Indigenous peoples have the right to maintain and strengthen their distinc-tive spiritual and material relationship with the lands, territories, watersand coastal seas and other resources which they have traditionally ownedor otherwise occupied or used, and to uphold their responsibilities to futuregenerations in this regard.

• Article 26

Indigenous peoples have the right to own, develop, control and use thelands and territories, including the total environment of the lands, air,waters, coastal seas, sea-ice, flora and fauna, and other resources whichthey have traditionally owned or otherwise occupied or used. This includesthe right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management ofresources, and the right to effective measures by States to prevent anyinterference with, alienation of or encroachment upon these rights.

63 E/CN.4/Sub.2/1994/2/Add.1 (1994).64 Article 42.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 161

• Article 27

Indigenous peoples have the right to the restitution of the lands, territoriesand resources which they have traditionally owned or otherwise occupiedor used, and which have been confiscated, occupied, used, or damagedwithout their free and informed consent. Where this is not possible, theyhave the right to just and fair compensation. Unless otherwise freely agreedupon by the peoples concerned, compensation shall take the form of lands,territories and resources equal in quality, size, and legal status.

• Article 28

Indigenous peoples have the right to the conservation, restoration andprotection of the total environment and the productive capacity of theirlands, territories and resources, as well as to assistance for this purposefrom States and through international cooperation . . .

3.4.7. International Labour Organisation (ILO) Convention 16965

This convention deals extensively with the rights of indigenous and tribalpeoples to land and the maintenance of their cultures, rights and dignity. Fur-ther, a number of the issues dealt with in the convention have direct relevanceto GIAHS. The entire convention has potential relevance to GIAHS, however,the following analysis restricts examination to directly relevant themes.

Respect for Cultural and Spiritual Values and Their Links With Land

First, the convention emphasizes the safeguarding of indigenous and tribalculture (Articles 2.2 and 4.1) and, in Article 13.1, requires members to

respect the special importance for the cultures and spiritual values of the peoplesconcerned of their relationship with the lands or territories, or both as applicable,which they occupy or otherwise use, and, in particular, the collective aspects of thisrelationship.

This obligation has extensive implications for the cultural and spiritual re-lationship of indigenous peoples with their ancestral territories which go farbeyond the scope of this analysis. The article may also be interpreted tosupport, as a subset of the wider relationship, the practical tradition–land rela-tionship manifested in all cases within the GIAHS concept. Further, the landpractices in many GIAHS examples are likely to be based on cultural and/or

65 Convention Concerning Indigenous and Tribal Peoples in Independent Countries. International LabourOrganisation (ILO) Convention 169. (Adopted by the General Conference of the International LabourOrganisation on 27 June 1989.)

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

162 HARROP

spiritual values that support (through customary law deriving from cultural orspiritual norms) the traditional practices that constitute the core of the system.

The article specifically refers to land that is not necessarily owned bythe relevant community and yet the requirement to respect the values relatingto that land implies the securing of the continuance of cultural practices.In practice, this can only be achieved in perpetuity by granting forms oftenure to the relevant community or by securing state protection through landdesignation or planning measures that prevent frustration of the cultural andspiritual links with the land however they are manifested.

Customary Law and Land Title

In order to accommodate the idiosyncrasies in the diversity of concepts ofland ownership within customary law regimes; Article 17.1 requires respectfor customary land title transmission rules.

Land Tenure

The Convention emphasises indigenous peoples’ rights to land and particularlyemphasises the protection of access to and use of traditional lands. The fulltext of part II contains many relevant provisions in this respect. In the GIAHScontext these provisions, whether or not they may be correctly interpretedas requiring the granting of tenure, are supportive of GIAHS in that theyimply as a minimum that member states should take steps to protect theaccess and use of lands (and surrounding zones) to the extent that they havebeen traditionally occupied (Article 14.1). Thus, planning or protected areadesignations are corollaries of these articles if a full grant of land tenure is notpracticable.

Article 14.1 states important principles supportive of GIAHS particularlywhere GIAHS communities share lands with others or overlap activities inzones external to the core GIAHS territories. The Article states:

The rights of ownership and possession of the peoples concerned over the landswhich they traditionally occupy shall be recognised. In addition, measures shall betaken in appropriate cases to safeguard the right of the peoples concerned to uselands not exclusively occupied by them, but to which they have traditionally hadaccess for their subsistence and traditional activities. Particular attention shall bepaid to the situation of nomadic peoples and shifting cultivators in this respect.

The reference to rights of ownership and possession does not necessarilyconnote full ownership.66 The intention instead appears to be to reflect the

66 See: The International Labour Organisation Convention No. 169 Concerning Indigenous and TribalPeoples in Independent Countries 1989. Discussion document, Ministry of Maori Development, p. 5.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 163

idiosyncratic nature of indigenous title as closely as possible within statelaws. In some cases it may be necessary to create sui generis forms of tenurerights. Where a state legal regime permits, this form of title may be in thenature of a trust, whereby ownership of the legal estate is held by the elders, forthe benefit of the whole community.67 In relation to access rights for shiftingcultivators and nomads, as referred to in the article, rights of access in the formof easements or the Anglo-Saxon and Norman concepts of common rights orprofits a prendre might be more appropriate (as already referred to). Again,any concept must fit in with the state legal paradigm.

Access to Natural Resources

A GIAHS community will need full, unobstructed access to the natural re-sources they require for their practices and total livelihood. The natural re-sources may be available in lands they own and also in other peripheralterritories that they may have occasionally occupied for the purposes of ob-taining those natural resources. It is essential that these rights are protected.Further, the activities of a GIAHS community may also be disrupted by exter-nal activities such as mining and forestry work. In order to prevent disruption,control in natural resources needs to be vested in communities with, at theleast, state protection in the peripheral zones.

Article 13.2 explains that lands in the articles dealing with natural re-sources includes the total environment of the areas which the peoples con-cerned occupy or otherwise use. Article 15.1 secures protection of the rightsof indigenous peoples in the natural resources available in their ancestralterritories as follows.

The rights of the peoples concerned to the natural resources pertaining to their landsshall be specially safeguarded. These rights include the right of these peoples toparticipate in the use, management and conservation of these resources. (15.1)

However, the position is altered by Article 15.2 where the state withholdscertain rights:

In cases in which the State retains the ownership of mineral or sub-surface re-sources or rights to other resources pertaining to lands, governments shall estab-lish or maintain procedures through which they shall consult these peoples, witha view to ascertaining whether and to what degree their interests would be prej-udiced, before undertaking or permitting any programmes for the exploration orexploitation of such resources pertaining to their lands. The peoples concerned shall

67 The English law of trusts lends itself particularly well to this approach to ownership. In countries wheresuch a system is not operated there are other approaches that could be deployed such as the use of devicesin the nature of corporate ownership vehicles.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

164 HARROP

wherever possible participate in the benefits of such activities, and shall receivefair compensation for any damages which they may sustain as a result of suchactivities.

GIAHS communities need to have guaranteed access to all their essentialnatural resources whether through unequivocal rights in land or through stateconcessions. Where a state has reserved to itself rights, in the manner describedin 15(2), compensation would not be an appropriate remedy and would notenable a GIAHS community to function. Although this convention deals withthe subject robustly, an instrument to grant greater powers would be neededto protect some GIAHS communities.

Other Matters

Where land needs to be appropriated to expand and enhance a GIAHS systemArticle 19 could assist in that it requires that indigenous and tribal peoplesare treated in an equivalent manner to other sectors of a society by Nationalagrarian programmes in relation to:

(a) The provision of more land for these peoples when they have not thearea necessary for providing the essentials of a normal existence, orfor any possible increase in their numbers;

(b) The provision of the means required to promote the development ofthe lands which these peoples already possess.

However, the article does not refer to traditional use of the land allottedand appears to be designed to avoid the marginalization of minority groups.Nevertheless, having regard to the wealth of references to tradition, culture,and spiritual belief in the Convention, there is nothing therein precluding suchland being used for the expansion and development of GIAHS traditionalpractices, which are, by nature, dynamic.

Article 23 supports and requires whenever appropriate the strengtheningand promoting of rural and community-based industries and traditional activ-ities of indigenous and tribal people such as hunting, fishing, trapping, andgathering. This article is clearly supportive, not only of core GIAHS practices,but also of the peripheral community practices that secure self-sufficiency ina GIAHS community.

The Convention is concerned, primarily, with the protection of the rightsof indigenous and tribal peoples and where possible redressing the imbalancecreated by historical land and cultural appropriation. The GIAHS concept isa means to support this but also has its own volition. Thus if a GIAHS siteis designated as such, it may be appropriate to require that it remains in that

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4

GLOBALLY IMPORTANT AGRICULTURAL HERITAGE SYSTEMS 165

condition (albeit one of dynamic development) in perpetuity. Article 7.1 mightcontradict this attempt to restrict land for GIAHS purposes:

The peoples concerned shall have the right to decide their own priorities for theprocess of development as it affects their lives, beliefs, institutions and spiritualwell-being and the lands they occupy or otherwise use, and to exercise control, tothe extent possible, over their own economic, social and cultural development.

The article bestows on indigenous and tribal peoples full rights to decidetheir own future. This is an inevitable expression of a fundamental right.However, for the sake of completeness, it is necessary to indicate that it couldalso empower a community to revoke GIAHS practices and move to othercontemporary methods of land use.

4. FINAL NOTE

The remaining areas of international law and policy affecting GIAHS concerntrade, eco-labelling, intellectual property rights, and benefit sharing. Thesesubjects are dealt with in the second article in this series. In addition, thatarticle will also examine potential regulatory paths that would be appropriateto enable the effective operation of the GIAHS project.

Dow

nloa

ded

by [

Yor

k U

nive

rsity

Lib

rari

es]

at 0

7:54

05

July

201

4