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Preserving Tradition that is Necessary to Exercising Essential Rights: Some Reflections on the ICJ Decision on Navigational Rights on the San Juan River

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Abstract In 2009 the ICJ delivered a decision on the interpretation of the 1858 Treaty of Limits between Costa Rica and Nicaragua. While the main issue concerned commercial navigation on the San Juan River, a small part of the Court’s decision dealt with private navigational rights that benefit the few riparian inhabitants of the Costa Rican bank. On the basis of humanitarian concerns, the Court decided that the treaty implicitly guarantees also private navigational rights, originating in a tradition predating the Treaty of Limits, and necessary nowadays to access schools and medical practices. The article takes the Court’s interpretation as the starting point for a reflection on the importance of human rights law in the preservation of communal traditions that cannot rely on international rules protecting groups according to their identity.

1. FN11) C. Dominicé, “Droits individuels et droits de l’homme: chevauchements et différences”, in: L. Boisson de Chazournes and M. G. Kohen (eds.), International Law and its Quest for its Implementation: Liber Amicorum Vera Gowlland-Debbas (2010) pp. 287–292.
2. FN22) Responsibility of states for internationally wrongful acts, Commentary to Art. 33, para. 3, Draft Articles 2001.
3. FN33) La Grand (Germany v. United States of America), ICJ Judgment, 27 June 2001, available online at: <> (last accessed 1 May 2012).
4. FN44) Responsibility of states for internationally wrongful acts, draft articles 2001, Article 33 – Scope of international obligations set out in this part.The obligations of the responsible State set out in this part may be owed to another State, to several States, or to the international community as a whole, depending in particular on the character and content of the international obligation and on the circumstances of the breach.This part is without prejudice to any right, arising from the international responsibility of a State, which may accrue directly to any person or entity other than a State.
5. FN55) Case Concerning the Dispute Regarding Navigational and related rights (Costa Rica v. Nicaragua), ICJ Judgment, 13 July 2009, available online at: <> (last accessed 1 May 2012), hereafter “Decision”.
6. FN66) Decision, paras. 134–144. On other aspects of the decision see Y. Tanaka, “Navigational Rights on the San Juan River, A Commentary on the Costa Rica v Nicaragua Case”, available online at: <> (last accessed 1 May 2012).
7. FN77) Hereafter “Treaty of Limits”. Text is Attachment 1 to Costa Rica’s application, available online at: <> (last accessed 1 May 2012).
8. FN88) Judge Guillaume’s Declaration attached to Decision (French version only), para. 6 mentions that this is not a “rare” solution, particularly in ancient treaties, quoting several examples p. 6, available online at: <> (last accessed 1 May 2012). However, it is not the most usual basis for marking a river boundary. In the case of non-navigable rivers, the median line is normally applicable; in the case of a navigable river, it is the principle of thalweg, i.e. the median line of the principal channel of navigation. These principles, it is true, “are presumptions”: I. Brownlie, African Boundaries, A Legal and Diplomatic Encyclopaedia (1979) p. 17.
9. FN99) See Decision, para. 48, where the Court disputes Nicaragua’s argument as to an “evident” hierarchy between the question of sovereignty (dominium and imperium in the Treaty of Limits, Art. VI) and that of navigational rights, indicating that the treaty has permanently modified sovereign rights: “A simple reading of Article VI shows that the Parties did not intend to establish any hierarchy as between Nicaragua’s sovereignty over the river and Costa Rica’s right of free navigation, characterized as “perpetual”, with each of these affirmations counter-balancing the other.”
10. FN1010) Supra note 7.
11. FN1111) Decision, paras. 68–9.
12. FN1212) See in this respect “Geographical and Historical context and origin of the dispute”, Decision, paras. 15–28. Two new claims recently introduced by Costa Rica and Nicaragua respectively at the ICJ show that these tensions are still present: see Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), introduced on 29th November 1210 and, according to The Court’s Press Release 2011/40 of 22/12/2011, “Nicaragua institutes proceedings against Costa Rica with regard to “violations of Nicaraguan sovereignty and major environmental damages to its territory”.
13. FN1313) Decision, para. 35.
14. FN1414) Decision, para. 77.
15. FN1515) Decision, para. 78.
16. FN1616) Decision, para. 79.
17. FN1717) Ibid. The word “preserve” seems to indicate that in the opinion of the Court riparian rights were in existence for a long time, whatever their nature, originally based on tradition only, then formally or informally guaranteed by whoever began exercising state sovereignty.
18. FN1818) The Court also “Finds that Costa Rica has the right of navigation on the San Juan river with official vessels used solely, in specific situations, to provide essential services for the inhabitants of the riparian areas where expeditious transportation is a condition for meeting the inhabitants’ requirements”, Decision para. 156(g).
19. FN1919) Decision, para. 141. The belated additional claim for fishing rights appears to have been motivated by Nicaragua’s measures prohibiting riparian fishing, taken shortly after the introduction of the case at the ICJ and indicating perhaps a retaliatory reaction to Costa Rica’s claim.
20. FN2020) Costa Rica, Memorial, para. 4.128.
21. FN2121) F. Berkes, “Subsistence Fishing in Canada: A Note on Terminology”, 41 Arctic (1988/4) pp. 319–320; E. Witbooi, “Subsistence Fishing in South Africa: Implementation of the Marine Living Resources Act”, 17 Int’l J. Marine & Coastal L. (2002) pp. 431–440, at p. 432.
22. FN2222) Decision, para. 141.
23. FN2323) Ibid.: “The Court observes that the practice, by its very nature, especially given the remoteness of the area and the small, thinly spread population, is not likely to be documented in any formal way in any official record.” It is now established that recognition of indigenous customary rights needs not be based on written evidence. Ex. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, December 11, 1997, available online at: <> (last accessed 1 May 2012). The same principle is presumably applicable, for specific purposes, to non-indigenous communities.
24. FN2424) Decision, Judge Guillaume’s Declaration, supra note 5, para. 19.
25. FN2525) Decision, Oral Pleadings, 2.3.2009, 10.15, Prof. Caflisch, p. 33 et seq.
26. FN2626) Decision, para. 36, following para. 35 excluding application of customary law: “The 1858 Treaty of Limits completely defines the rules applicable to the section of the San Juan River that is in dispute in respect of navigation.” See also paras. 67 et seq.
27. FN2727) The Court did not deem necessary to decide whether the San Juan should be considered an “international river” – as claimed by Costa Rica – since this would have entailed applying customary law to the question of navigation and that “such rules could only be operative, at the very most, in the absence of any treaty provision that had the effect of excluding them in particular because those provisions were intended to define completely the regime applicable to navigation . . .”, Decision, paras. 34–36.
28. FN2828) Judge Guillaume’s “Declaration”, para. 19, in fine. See also Decision, Separate Opinion, Judge Skotnikov, para. 13, for whom riparian rights remained unaffected by the 1858 Treaty, with an obligation for Nicaragua to go on respecting them, presumably under a bilateral customary rule as with subsistence fishing.
29. FN2929) E. Lauterpacht, “Freedom of Transit in International Law”, 44 Trans. Grot. Soc. (1958–59) pp. 313–356, at p. 346 et seq.
30. FN3030) Lauterpacht, supra note 29, pp. 319–20. According to Lauterpacht,The operative principle, it is believed, is that States, far from being free to treat the establishment or regulation of routes of transit as a substantial derogation from their sovereignty which they are entirely free to refuse, are bound to act in this matter in the fulfilment of an obligation to the community of which they form a part.The author quotes Grotius, Pufendorf and Vattel at p. 320 and ftns. 23, 24, 25. And later: “[. . .] despite the variation of form, the underlying concept remains the same: that, by virtue of their physical juxtaposition one to another, States are not free arbitrarily to deny to each other the use of convenient or necessary routes of communication.” at p. 322.
31. FN3131) One ex.: Öcalan v. Turkey, appl. No. 46221/99, ECtHR Judgment 12.5.2005, merits, para. 88. See on the concept in general S. Villalpando, “International Community: How Community Interests are protected in International Law”, 21 IJEL (2010) pp. 387–419; for various articles on the concept of Community Interest see: U. Fastenrath et al. (eds.), From Bilateralism to Community Interest, Essays in Honour of Judge Bruno Simma (2011).
32. FN3232) Compare with La Grand case, supra ftn. 3, in relation to individual rights’ creation by the Consular Convention para. 77. See also D. Greig, “The Time of Conclusion and the Time of Application of Treaties as Points of Reference in the Interpretative Process”, in: M. Craven et al. (eds.), Time, History and International Law (2007) pp. 163–217, at p. 207 quoting Judge Veeeramantry’s view in his separate opinion in the Gabčikovo-Nagymaros Project Case (Hungary/Slovakia), ICJ Judgment, 25 September 1997, available online at: <> (last accessed 1 May 2012), that “Treaties that affect human rights cannot be applied in such a manner as to constitute a denial of human rights at the time of their application.”
33. FN3333) Institut du Droit International, “Le problème du droit intertemporel dans l’ordre international”, Report of the Eleventh Commission, Max Soerensen, Rapporteur, 55 Annuaire de l’ Institut du Droit International (1973) and Resolution, 56 Annuaire de l’ Institut du Droit International (1975); R. Higgins, “Time and Law: International Perspectives of an Old Problem”, 46 ICLQ (1997) pp. 501, 504–507; E. McWhinney, “The Time Dimension in International Law, Historical Relativism and Intertemporal Law”, in: Jerzy Makarczyk (ed.), Essays in international law in honour of Judge Manfred Lachs, Etudes de droit international en l’honneur du Juge Manfred Lachs (1984), pp. 179–201; M. Chemillier-Gendreau, Le rôle du temps dans la formation du droit international (1987) pp. 60 et seq.; A. D’Amato, “International Law, Inter-temporal Problems”, Encyclopedia of Public International Law (1992) pp. 1234–1236; P. Tavernier, “Observations sur le droit intertemporel dans l’affaire de l’Ile de Kasikili/Sedudu (Botswana Namibie) Cour Internationale de Justice: Arrêt du 13 Décembre 1999”, 104 RGDIP (2000) p. 430; M. G. Kohen, “L’influence du temps sur les règlements territoriaux” in Le droit international et le temps (2001) pp. 131–160.
34. FN3434) The Island of Palmas Case (or Miangas), United States of America v. The Netherlands Tribunal of the Permanent Court of Arbitration, 4th April 1928, 2 UNRIAA, p. 829, at 14.
35. FN3535) See P. Reuter, AIDI (1973), p. 74 quoted by P. Weckel, “Les instantanés du droit international”, in Le droit international et le temps (2001) pp. 175–200, 198, at ftn. 55, who considered that the problem of interpretation “does not concern the problem of intertemporal law: the latter does not concern norms the content of which is variable due to a variable “renvoi ”, but rather the field of application of two rules with a fixed content.” (Author’s translation).
36. FN3636) Weckel, supra note 35, p. 198.
37. FN3737) Ibid.
38. FN3838) According to Prof. Kohen, Oral Pleadings 3.3.2009, 10am, p. 57 paras.23 et seq., “In its comment on Article 11 of the International Covenant on Economic, Social and Cultural Rights (to which Nicaragua is a party), the United Nations Committee on Economic, Social and Cultural Rights stated that “[t]he obligation to respect existing access to adequate food requires States parties not to take any measures that result in preventing such access”.
39. FN3939) Polish Upper Silesia, PCIJ, Series A, No 7, p. 42; Land, Island and Maritime Frontier Dispute case, ICJ Rep. 1992, pp. 400–401, para. 66; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) Judgment, ICJ Rep. 2002, p. 374, para. 123 and p. 370, para. 107).
40. FN4040) Judge Sepulveda’s Separate Opinion, para. 28.
41. FN4141) Oral Pleadings, 2.2.2009, Arnoldo Brenes, “Geographical and historical considerations”, pp. 15–25.
42. FN4242) P. Daillier, A. Pellet, Droit International Public (2002), paras. 356 et seq.
43. FN4343) Polish Upper Silesia, PCIJ Series A, No 7, 20–21. Advisory Opinion, PCIJ 10 September 1923, Series B, no 6, pp. 15 and 36; German Interests, Chorzow, 26 July, 1927, series A no 9, pp. 27–28; the theory concerns also public concessions agreements.
44. FN4444) Land, Island and Maritime Frontier Dispute Case (El Salvador v Honduras: Nicaragua intervening), ICJ Reports 1992, pp. 400–401, para. 66; Land and Maritime Boundary between Cameroun and Nigeria (Cameroun v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 374, para. 123 and p. 370, para. 107.
45. FN4545) Vienna Convention on Succession of States in respect of State Property, Archives and Debts, Report of the International Law Commission on the work of its twenty-first session, 2 June 8 August 1969, Official Records of the General Assembly, Twenty-fourth Session, Supplement No. 10 (A/7610/Rev.1), paras. 42–60 and Commission’s conclusions, in part. para. 61. As per 10/1.2012 the Convention is not in force as it has only gathered 8 ratifications against the 15 required. Daillier and Pellet (supra ftn. 42) are of the opinion that no definitive conclusions can be drawn from the PCIJ jurisprudence because it related to conventional engagements that resulted from very punctual and history-sensitive relationships.
46. FN4646) See supra note 44. Judge Sepùlveda also suggests that as a binding unilateral act, Nicaragua’s declaration that it would not prevent riparian fishing could have provided a better legal basis than bilateral custom. Judge Sepùlveda’s Separate Opinion, para. 34.
47. FN4747) German Settlers Case (Advisory Opinion) 10 September 1923, PCIJ Series B, No 6, at 36.
48. FN4848) M. T. Kamminga, “State Succession in Respect of Human Rights Treaties”, 7 EJIL (1996) pp. 469–484, 472–3.
49. FN4949) S. J. Anaya, Indigenous Peoples in International Law (2004), p. 141 et seq. The principle, as the author well illustrates, is crucial to the exercise of all those rights that are necessary to the survival of indigenous people.
50. FN5050) As Judge Guillaume points out in his Declaration attached to Decision, para. 19.
51. FN5151) N. Bobbio, La consuetudine come fatto normativo, (original Italian text only, 1942); H. Patrick Glenn, Legal Traditions of the World – Sustainable Diversity in Law (2010); id. “A Concept of Legal Tradition”, 34 Queen’s L.J. (2008–2009) pp. 427, 428–9; According to J. Vanderlinden, Comparer les droits (1995) p. 339: “Systems where custom is the dominant source of law are characterised by five features: continuity of formation of process of law, gestuality (in contrast to orality), localism, the informal transmission of its results and its tendency to absorb other legal sources [author’s transl.].” See also pp. 339–342.
52. FN5252) Bobbio, supra note 51, at ftn. 57, p. 85.
53. FN5353) Ibid., p. 89. An example of the second hypothesis is domestic law reference to lex mercatoria; examples of the third hypothesis are numerous, for instance in the South African 1996 Constitution, Chapter 12 (sects. 211 and 212. Sec. 211(3) mandates the application of domestic custom by the courts, where applicable. Custom is further protected within the Bill of Rights included within the Constitution: see in part. protection of cultural, religious and linguistic communities in sec. 31. See T. W. Bennett, Customary Law in South Africa (2004), Chapter 2.
54. FN5454) S. Fullerton Joireman, “Inherited Legal Systems and Effective Rule of Law”, 39 The Journal of Modern African Studies (2001) pp. 571–596; J. Fenrich, P. Galizzi, T. E. Higgins (eds.), The Future of African Customary Law (2011).
55. FN5555) I. Brownlie, in his introduction to African Boundaries, supra note 8, pp. 6–7, stresses how complicate the picture of boundaries between African states has always been, how difficult it was to deal with tribal distribution across frontiers not least because of the difficulty of group designation as tribe, people or nations, or because of the lose administrative original structures, or due to insufficient geographical mapping, etc. Ethnographical considerations have nevertheless entered into border marking and many treaties have taken into consideration tribal traditional trans-border agricultural activities [see. ex. Algeria-Morocco, Protocol 20.7.1901, at p. 63] and common river navigation.
56. FN5656) A legally binding document on the specific subject of tribal and indigenous people, the ILO Conv. 169 [available online at: <> (last accessed 1 May 2012)] applies to(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
57. FN5757) Declaration on the Rights of Indigenous Peoples, A/61/L.67, Art. 36:Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders. 2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.Available online at: <> (last accessed 1 May 2012).
58. FN5858) Treaty of Amity, Commerce and Navigation (Jay Treaty), Nov. 19, 1794, U.S.-Gr. Brit., 8 Stat. 116, Art. III.
59. FN5959) R. Osburn, “Problems and solutions regarding indigenous peoples split by International borders”, 24 Am. Ind. Law Review (1999–2000) pp. 471, 472. The rights, abrogated by the Anglo- American War of 1812, were revived by the Treaty of Ghent (1814) [available online at: < 19th_century/ghent.asp> (last accessed 1 May 2012)] ending that war, subject only to restrictions imposed by both treaties [Ibid., p. 473]. See also interesting case-law quoted by the author. Karl S. Hele, Lines Drawn upon the Water: First Nations and the Great Lakes Borders and Borderlands (2008).
60. FN6060) D. Lewerenz, “Historical context and the survival of the Jay Treaty Free Passage Right: A response to Marcia Yablon-Zug”, 24 AJlICL, (2010/1) pp. 193–223.
61. FN6161) Osburn, supra note 59, p. 48.
62. FN6262) Agreement Concerning Mutual Visits by Inhabitants of the Bering Straits Region, Sept. 23, 1989, U.S.-U.S.S.R., Hein’s No. KAV 1794, Temp. State Dep’t No. 91–167, available in 1991 WL 495108 (entered into force July 10, 1991), see Osburn, supra note 59, p. 48 et seq. The Sami people enjoy freedom of movement within the EU legal regime: see D. A. Gower Lewis, The Saami and Samiland as an example of the application of the Indigenous Rights within the European Union, Faculty of Law Lund University, Master of European Affairs Programme, Law Section, Master thesis, G. Alfredsson, superv., [available online at: <> (last accessed 1 May 2012)].
63. FN6363) Transfrontier cooperation in relation to cross-border minorities has often been organised by treaty, either as a punctual issue or on the occasion of drawing frontiers or in the framework of regional cooperation. In Europe, see Framework Convention for the Protection of National Minorities (1995), Preamble and Art. 9, 17, 18; European Charter for Regional or Minority Languages (1992), Art. 14 ; European Convention on Transfrontier Cooperation between Territorial Communities or Authorities (1980) that can also help to promote transfrontier contacts between minorities. All conventions are available online at: <> (last accessed 1 May 2012).
64. FN6464) 1998 (Phase 1) Award of the Arbitral Tribunal set up between Eritrea and Yemen, hereafter “Arbitration”. See Award in the 2nd stage, 17.12.1999, paras. 87 et seq. ILR Vol. 114.
65. FN6565) According to “Agreement on Principles”, Paris, 21 May 1996, Art. 2 para. 2, as quoted in Arbitration, Phase 1, Chapter I, Art. 2: “[T]he Tribunal shall decide in accordance with the principles, rules and practices of international law applicable to the matter, and on the basis, in particular, of historic titles . . .”.
66. FN6666) Arbitration, para. 127.
67. FN6767) Arbitration, para. 526.
68. FN6868) Eritrea – Ethiopia Boundary Commission, Decision Regarding Delimitation of the Border between The State of Eritrea and The Federal Democratic Republic of Ethiopia, 13th April 2002, chap. VII, para. 7.3., available online at: <> (last accessed 1 May 2012).
69. FN6969) P. Thornberry, Indigenous Peoples and Human Rights (2002), Chapter II.
70. FN7070) Ibid., 42 et seq.
71. FN7171) World Directory of Minorities and Indigenous Peoples – Costa Rica : Overview, Refworld, UNHCR, available online at: <> (last accessed 1 May 2012).
72. FN7272) See supra note 56.
73. FN7373) J. Peter Brosius, A. Lowenhaupt Tsing, C. Zerner, “Representing communities: Histories and politics of community-based natural resource management”, 11 Society and Natural Resources (1998) pp. 157–168; J. Peter Brosius, A. Lowenhaupt Tsing, C. Zerner (eds.), Communities and Conservation (2005); Lee P. Breckenbridge, “Protection of Biological and Cultural Diversity: Emerging Recognition of Local Community Rights in Ecosystems under International Environmental Law”, 59 Tennessee L.R. (1991–1992) p. 725; E. D. G. Fraser et al., “Bottom up and top down: Analysis of participatory processes for sustainability indicator identification as a pathway to community empowerment and sustainable environmental management”, XXX Journal of Environmental Management (2005) pp. 1–14.
74. FN7474) Because sustainable development is considered essential to indigenous people’s survival, their contribution to sustainability in their own territories is being increasingly recognised and put to contribution. Ex. US: “Working with Tribes, American Indian Tribal Rights”, Federal-Tribal Trust Responsibilities and the Endangered Species Act, Order issued by the Secretary of the Interior and the Secretary of Commerce (Secretaries) pursuant to the Endangered Species Act of 1973, 16 U.S.C. 1531.
75. FN7575) R. A. Clark, “Securing Communal Land Rights to Achieve Sustainable Development in Sub-Saharan Africa: Critical Analysis and Policy Implications”, 5/2 Law, Environment and Development Journal (2009) pp. 130–151.
76. FN7676) “What place for customary law in protecting traditional knowledge?” WIPO Mag. 2010/4, available online at: <> (last accessed 1 May 2012). According to WIPO[T]here is growing recognition within international circles that “due recognition or consideration” needs to be given to customary law… It is similarly reflected in text-based negotiations within WIPO’s Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC) and the Draft Protocol to the Convention on Biological Diversity (CBD).
77. FN7777) “Community Rights, Corporate Wrongs”, Friends of the Earth, Report, October 2011, available online at: <> (last accessed 1 May 2012).
78. FN7878) M. Ramazzotti, “Customary rights and contemporary water legislation. Mapping out the Interface”, FAO Legal Papers Online, Nr 76, FAO, Rome, December 2008; S. Burchi, “The Interface between Customary and Statutory Water Rights – A Statutory Perspective”, FAO Legal Papers Online Nr 45, FAO, Rome, March 2005, available online at: <> (last accessed 1 May 2012).; A. Davidson-Harden et al., “Local Control and Management of our Water Commons – Stories of Rising to the Challenge”, available online at: <> (last accessed 1 May 2012).
79. FN7979) L. Milich, “Openness, Sustainability and Public Participation: New Designs for Transboundary River Institutions”, 8 The Journal for Environment and Development (1999) pp. 258–306; “International River Basins of the World”, 15 International Journal of Water Resources Development, (1999/4) (Whole Issue).
80. FN8080) A. Cassar, “Decisions for the Earth: Balance, voice and power”, Ch. 7, Box.7.2 in World Resource Institute, Transboundary environmental governance: the ebb and flow of river basin organizations, World Resources 2002–2004, pp. 158–9, available online at: < PubID=3764> (last accessed 1 May 2012). The document speaks of “a holistic approach that combines water and land management to develop and protect river basins as ecosystems”.
81. FN8181) FAO, Experience 6, The Central American Communication Initiative for Sustainable development (ICCADES) – Collaborative efforts in the San Juan River Bi-National Basin, available online at: <> (last accessed 1 May 2012); on a “right to communicate” see “Statement on the right to communicate, Art. 19 global campaign for free expression”, World Summit on the Information Society, (ITU) Geneva 2003-Tunis 2005, doc. WSIS/PC-2/CONTR/ 95-E, available online at: <www.> (last accessed 1 May 2012).
82. FN8282) Funding has come primarily from the FAO’s Forests, Trees and People Programme in Central America, and the Agriculture Frontier Programme of the European Union. It is one of different development projects attempted since the 1980s and comprises a large number of other partner organisations.
83. FN8383) Similar projects are recorded elsewhere in the world, where local inhabitants are taking over the management of their own riparian environment. See ex. “Declaration by Local Communities of the River Basins in Thailand, Mun River (a tributary of the Mekong), Ubon Ratchathani province”, Thailand, November 12, 2002, available online at: <[0Basin.pdf> (last accessed 1 May 2012).
84. FN8484) Intellectual Property Rights.
85. FN8585) Traditional Resource Rights. On all these questions see D. A. Posey/G. Dutfield, Beyond Intellectual Property (1996) with p. 96 a list of documents and organisations providing TRR. See also: M. Latorre Quinn, “Protection for Indigenous Knowledge: an International Law Analysis”, 14 St. Thomas L. Rev. (2001–2002) pp. 287–313.
86. FN8686) In some situations, effective protection of communal rights in domestic law can be reinforced if the community can constitute itself as a legal person.
87. FN8787) Yi-Fu Tuan, “Community, Society, and the Individual”, 92 The Geographical Review (2002/3) pp. 307–318.
88. FN8888) Diergaardt et al. v. Namibia, Human Rights Committee, Communication No 760/1997, CCPR/C/69/ D/760/1196, para. 10.6 “Although the link of the Rehoboth community to the lands in question dates back some 125 years, it is not the result of a relationship that would have given rise to a distinctive culture.
89. FN8989) Ibid., para. 10.3.
90. FN9090) Ibid.
91. FN9191) Ibid. and ftn. 4 in the document.
92. FN9292) Ibid., para. 10.4.
93. FN9393) “Land Tenure and rural development”, FAO Land Tenure Studies, Rome, 2002, available online at: <> (last accessed 1 May 2012).
94. FN9494) Clark, supra note 75, p. 132. See however, “Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security”, officially endorsed by the CFS on 11 May 2012, available online at (last accessed 29 May 2012).
95. FN9595) B. Kingsbury, “Indigenous People in International Law: A Constructivist Approach to the Asian Controversy”, 92 AJIL (1998) pp. 414–457, 450.
96. FN9696) Thornberry, supra note 69, p. 52.
97. FN9797) Case of the Mayagna (Sumo) Awas Tingni Comty. V. Nicaragua, Inter-Am. Ct. H.R. (Ser.C) No 79 (Judgment on merits and reparations of Aug. 31, 2001).
98. FN9898) S. James Anaya, “Divergent Discourses About International Law, Indigenous Peoples, and Rights over Lands and Natural Resources: Towards a Realist Trend”, 16 Colo.J.Int’l Envt.L.& Pol’y (2005) pp. 237–258. The author was lead counsel to the community of Awas Tingni during the whole of the procedure also at the Commission.
99. FN9999) The general point emerges clearly in R. Cespedes, “The influence of international law on the Chilean legal system: more than just Pinochet”, Queen Mary Law Journal, special conference edition, forthcom. publ., quoting Agua Mineral Chusmiza SAIC v Comunidad Indígena Aymará de Chusmiza y Usmagana, Supreme Court (2009), Rol 2840-2008; Puelman Nanco v COREMA región de la Araucanía, Appeal Court Temuco (2010), Rol 1705-2009 (both cases in Spanish).
100. FN100100) “UN Common Statement of Understanding on Human Rights Based Approach to Development, cooperation and Programming”, available online at: <> (last accessed 1 May 2012).
101. FN101101) In the year 2000 the UNDP established eight priority development goals to be reached by 2015 and assessed by way of quantifiable indicators. The goals include achieving universal primary education, improving maternal health and combating hiv/aids, malaria and other diseases. The 2010 Report emphasises the importance of communities as essential vehicles for the pursuit of these goals. All reports are available online at: <> (last accessed 1 May 2012).
102. FN102102) B. Mason Meier, A. M. Fox, “Development as Health: Employing the Collective Right to Development to Achieve the Goals of the Individual Right to Health”, 30 HRQ (2008) pp. 259–355.
103. FN103103) Additional Protocol to the Inter American Convention on Human Rights in the area of Economic, Social, and Cultural Rights (more commonly known as the “Protocol of San Salvador”). Opened for signature in the city of San Salvador on 17 November 1988, it covers a number of “second generation” rights not included in the Convention. It has come into effect on 16 November 1999 and has been ratified by 14 nations including Costa Rica.
104. FN104104) On 10 December 2008, the General Assembly unanimously adopted an Optional Protocol (GA resolution A/RES/63/117) to the International Covenant on Economic, Social and Cultural Rights which provides the Committee competence to receive and consider communications.
105. FN105105) Balancing of interests in this respect is far from easy according to circumstances: T. Logan, “Ireland risks being fined by the European commission over a bitter battle for the traditional right of rural families to dig peat to burn as fuel at home”, BBC site, 9 June 2011, available online at: < .uk/1/hi/programmes/from_our_own_correspondent/9508788.stm> (last accessed 6 July 2011).

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