In judicial language, a rightsholder is a subject who holds a right. This implies that the subject’s interests are sufficiently important to raise a legal/moral duty (or set of duties) on the part of one or more other subjects. In other words, the rightsholders’ wellbeing and interests have an intrinsic value, they “are a sufficient reason for holding some other person(s) under a duty”.[1]

In the context of protected and conserved areas and territories of life, we can refer to ‘rightsholders’ as “actors socially endowed with legal or customary rights with respect to land, water and other natural resources”.[2] This means that land, water and other natural resources are so important for the needs, interests or desires of the right-holders that it would be morally and/or legally wrong to deny access to them, regardless of the advantages or disadvantages to someone else.[3] Naturally, who is entitled to count as a ‘rightsholder’ is often hotly disputed. And increasingly, there are demands to recognize as rightsholders even non-human beings (see below).

Importantly, rights are constructed by States and often do not reflect the deeper relational accountabilities and responsibilities that many indigenous peoples and traditional communities feel towards one another, the natural world, and more-than-human relations. In this sense, the qualities that make some people rightsholders have to do with their perceived cultural and spiritual connection with nature more than anything else. The Consortium stresses that rights should be grounded in responsibilities.

May only human beings be rightsholders?

Subject, when referred to the right-holder, may be a person, a group of persons, but also, depending on the legal or moral system of reference, a juridical person (such as a corporation), as well as an animal, plant, natural element, nature itself (Mother Nature), or a sacred natural site. However, the ability of such various subjects to be considered rightsholders is still very contested, based on the anthropocentric beliefs that only human beings or groups composed of human beings may be considered legal subjects, i.e. may be recognized to have subjectivity. Nevertheless, jurisprudence, laws and constitutions around the world (such as the Ecuador’s and Bolivia’s Constitutions, court cases and Acts in India, Colombia and New Zealand)[4] are paving the way for the recognition of intrinsic value, subjectivity and rights to more than human beings alone.

The extension of legal subjectivity to natural elements, and hence the ability to regard them as rightsholders, may be used as a means to promote the conservation of ICCAs—territories of life, further justifying their importance not only for the protection of nature as a human interest (instrumental value), but also for the protection of nature (or elements of it) as holder of intrinsic value and rights. The case of Whanganui river (2017, Aotearoa/ New Zealand), clearly shows how it may also further the worldviews, relationships, and interests of indigenous peoples. The Te Awa Tupua Act recognizes the Whanganui River, all its tributaries, and their beds, as an indivisible and living whole possessing legal personality, and as one of the ancestors of the Whanganui iwi (tribes) which is to be protected, respected and guarded upon for their physical, cultural and spiritual survival. The river now holds all the powers, rights, duties, and liabilities of a legal person (it is a rights-holder as well as a duty-holder) and exercises them through a joint action of the Whanganui Iwi and the Crown.[5]

Indigenous peoples, local communities and their territories of life—rightsholders because of property titles?

When referring to ICCAs—territories of life, the governance rights of the people or community most often do not derive from a property title. Instead, their rights originate from even stronger factors of social, economic and environmental nature. Those include ‘collective use and occupation from time immemorial’, ‘historical rights’, ‘customary rules’, special de facto governance, commitment to govern a given territory, charter myths and forms of social consensus built over centuries.

In the 2001 case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the InterAmerican Court of Human Rights stated, that “in the case of indigenous communities who have occupied their ancestral lands in accordance with customary practices – yet who lack real title to the property – mere possession of the land should suffice to obtain official recognition of their communal ownership”. In the 2007 case of Saramaka People v. Suriname, which dealt with local communities, the same Court explained that it is “because they share distinct social, cultural, and economic characteristics, including a special relationship with their ancestral territories”. Such land and resource rights may clash (as in the mentioned court cases) with current national laws, or with state concessions to external actors (such as corporations) based on processes of nationalization or privatization of land and resources.

Key references:

Stone, 1972; MacCormick, 1976; Kramer,1988; Raz, 1988; Berry, 1996; Mejido Costoya, 2013; Kauffman and Martin, 2017; Kotzé and Calzadilla Villavicencio, 2017; Surrallés, 2017; Studley and Bleisch, 2018; Kauffman and Sheehan, forthcoming.

Court cases:

  • Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-American Court on Human Rights, 2001. No.79, Ser. C.
  • Saramaka People v. Suriname, Inter-American Court on Human Rights, 2007.  No. 172, Ser. C.
  • Mohd. Salim v State of Uttarakhand and Others, 2017. Writ Petition No. 210 of 2017 (M/S). Uttarakhand High Court.
  • Parliament of Aotearoa New Zealand, 2017. Te Awa Tupua (Whanganui River Claims Settlement) Bill.
  • Plurinational State of Bolivia, 2009. The Constitution of the Plurinatonal State of Bolivia.
  • Plurinational State of Bolivia, 2010. Ley de Derechos de la Madre Tierra – No. 071.
  • Republic of Ecuador, 2008. The Constitution of the Republic of Ecuador.

[1] Raz, 1988, page 116.

[2] Borrini-Feyerabend and Hill, 2015, page 180.

[3] The fulfilment of the duty may also benefit other subjects (which may be called beneficiaries). However, the fact that they benefit from the fulfilment of the duty does not justify the existence of the right (and consequently, of the duty).

[4] For a collection of cases, see: www.naturerightswatch.com.

[5] Other cases include Te Urewara in New Zealand, which is a region (mountains, lake, forests) recognised as having personhood and status as ‘conserved area’ by the Te Urewara Act of 2014, and the Atrato river in Colombia