Hardin’s ‘Tragedy of the Commons’: Indigenous Peoples’ Rights and Environmental Protection: Moving Towards an Emerging Norm of Indigenous Rights Protection?

Abstract

Most of the world’s natural resources can be found on the territories of indigenous peoples. This puts indigenous peoples in a position where they are not only subjected to environmental hazards as a result of the mining and exploitation of these resources, but are also denied the use and control of these resources. In addition, the proximity to such commodities makes indigenous peoples the subject of widespread human rights violations. This article discusses the indigenous peoples’ situation in light of Garret Hardin’s theoretical “Tragedy of the Commons” concept of the correlation between shared resources and their depletion before the reality of the major role Multinational Corporations (MNCs) play in the abuse of indigenous peoples’ rights. At the international level, we find a progressive consensus in recognizing the rights of indigenous peoples with regard to the management of their lands and natural resources. We argue that the absence of an international and permanent mechanism for holding MNCs accountable for environmental pollution and human rights abuses remains one of the biggest threats to indigenous peoples’ rights. Resorting to transnational and international litigation to close this accountability gap seems to be the last resort for indigenous peoples. This article explores examples in national jurisdictions which establish enforceable environmental rights such as environmental personhood, the recognition of the fundamental rights of Mother Earth, the harmonious construction of the right to clean environment and right to life, and the right to be consulted and accommodated, all of which are relevant to indigenous peoples. This article links the relationship between human rights and environmental protection and, establishes that resource ownership and communal management of shared resources, rather than state’s control, are necessary for both the protection of the environment and, by extension, of indigenous peoples as socially and culturally distinct groups.