Abstract

Excerpted From: Elisa Morgera, Participation of Indigenous Peoples in Decision Making over Deep-Seabed Mining, 118 AJIL Unbound 93 (2024??) (45 Footnotes) (Full Document)

In this essay, I reflect on the challenges and opportunities in ensuring the genuine and meaningful participation of Indigenous peoples at the International Seabed Authority (ISA), with a view to giving due consideration to Indigenous peoples' human rights and integrating their knowledge into international decisions on deep-seabed mining. The essay begins with an assessment of how the current limitations in transparency and public participation in the practice of the ISA constitute barriers for the participation of Indigenous peoples. I then argue that existing international human rights obligations require Indigenous peoples' participation at the ISA and that entry points within the ISA regime already exist to comply with these obligations. I conclude by emphasizing the need to support meaningful participation by Indigenous peoples through social sciences expertise and the involvement of independent international human rights experts, to actively address any biases vis-à-vis Indigenous knowledge.

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Finally, it is crucial to combine efforts to ensure the meaningful participation of Indigenous peoples in the current ISA decision-making structure with the push to bring about a more radical reform of the decision-making practices at the ISA. An opportunity to do so will be the upcoming periodic review of the ISA, on which a decision of the ISA Assembly is expected in July 2024. The review process itself should include Indigenous peoples and human rights expertise, such as inputs from the UN Special Rapporteur on Indigenous Peoples' Human Rights, the UN Permanent Forum on Indigenous Issues, and the UN Office of the High Commissioner for Human Rights. The review could also draw on the standards on transparency and participation enshrined in the 2023 Agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, where, for instance, the Scientific and Technical Body members are to serve “in their expert capacity and in the best interest of the Agreement.” These members should have “suitable qualifications, taking into account the need for multidisciplinary expertise, including ... expertise in relevant traditional knowledge of Indigenous Peoples and local communities.” Even if the Agreement is not yet in force, it provides clear evidence of the progressive development of the law of the sea in terms of recognition, participation, and protection of the human rights of Indigenous peoples, which should support an evolutive interpretation and change in practices also at the ISA.

Professor of Global Environmental Law, Strathclyde University Law School, UK; Director of the One Ocean Hub, which is a collaborative research programme for sustainable development funded by UK Research and Innovation (UKRI) through the Global Challenges Research Fund (GCRF) (Grant Ref: NE/S008950/1).