Balancing the Indigenous Peoples’ Ancestral Sea Rights, and the State’s Obligation to Protect and Preserve the Marine Environment

Abstract

There is a dynamic interplay between the State’s assertion of sovereignty over its territory, and the indigenous peoples’ claim over their traditionally owned seas. As experienced by the indigenous peoples in the Philippines and Australia, this dynamism is about lobbying for the recognition of their native title over ancestral seas, which includes their traditional fishing rights, and facing State interference with their affairs in managing these so-called sea countries. In this context, this article argues that there is sufficient basis for the recognition of an ancestral sea under the core human rights instruments, particularly through the lens of the indigenous peoples’ right to self-determination, right to enjoy or manifest culture, and right to protect their means of subsistence. It further argues that the State has a positive obligation to promote the realisation of ancestral rights, despite the Law of the Sea regime’s strong position on State sovereignty and sovereign rights, as well as a State duty in protecting and preserving the marine environment condition. Hence, there should be greater recognition of the role of indigenous peoples in managing the marine ecosystem of their ancestral seas.