Cultural Traditional Practices Versus Protection of Wildlife. Possible Solutions in the Light of the Principle of Sustainability

Some international treaties for the protection of wildlife or for the regulation of the exploitation of living resources contain clauses which provide exceptions to the protection measures in order to safeguard traditional or cultural practices affecting endangered wildlife or resources. Such clauses may be misused by some Parties to circumvent the prohibitions and continue to exploit the resources, as in the well-known case of the International Convention for the Regulation of Whaling. To prevent these abuses, it is essential to define precisely who can benefit from the exceptions (e.g., only indigenous people?), the limits of these exceptions (e.g., as regards the use only of certain hunting or collecting methods), the cultural relevance of the resources in se or of their use (e.g., may a subsistence utilization be considered a cultural tradition?). However, even when these benchmarks have been met and the need for cultural exceptions is genuine, conflicts may arise between the protection of wildlife (including natural areas or, in general, biodiversity), and the protection of cultural rights, especially when the prevalence of one of these needs may cause irreversible damages or the extinction of the resource used for cultural purposes. The present chapter suggests resolving conflicts by using the principle of sustainability as a possible limitation to the authorisation of “cultural exceptions”. In particular, the principle of sustainability, especially in its environmental meaning of sustainable utilization of natural resources, could be used as a means of interpretation of treaties. Art. 31.3.c of the 1969 Vienna Convention on the Law of Treaties provides that, for such purpose, there shall be taken into account “any relevant rules of international law applicable in the relations between the parties”. While the principle of sustainability (including the principle of sustainable utilization of natural resources) cannot be considered stricto sensu a “rule”, nonetheless the general principles of law constitute one of the sources of international law (Art. 38.1.c of the Statute of the International Court of Justice). As such, they should guide interpretation of treaties. More specifically, sustainability may help as a balance between different rights and interests to be protected or as a lens to read the treaty provisions in order to preserve natural resources, biodiversity and their legitimate use.