Still, a global, comprehensive, inclusive and integrated prescriptive effort was needed to listen to and to address all of the concerns of indigenous peoples. The forum for these efforts was the United Nations, and the ultimate result was the United Nations Declaration on the Rights of Indigenous Peoples. In , as the plight of indigenous peoples had become ever more visible, the United Nations Economic and Social Council appointed a Special Rapporteur, Mr. In , under the determined leadership of Chairperson-Rapporteur Mrs.
Erica-Irene A. Daes, this Working Group of independent experts began drafting a declaration on the rights of indigenous peoples, taking into account the comments and suggestions of participants in its sessions, particularly representatives of indigenous peoples and Governments. At its eleventh session, in July , the Working Group agreed on a final text for the draft declaration and submitted it to the Sub-Commission. In August , the Sub-Commission adopted the draft declaration and submitted it to the Commission on Human Rights for consideration.
In , the Commission on Human Rights appointed a new Working Group, with predominantly Government participation, charged with achieving a consensus on the draft declaration. In doing so, the Council adopted without change a joint draft resolution submitted by Peru based on the final compromise text proposed by the Chairman of the Working Group, Mr. On 28 November , the Third Committee of the General Assembly, by a vote of 82 in favor to 67 against, with 25 abstentions, decided to defer consideration pending further consultations, with a view to taking action on the Declaration before the end of the sixty-first session of the General Assembly, i.
The last changes were made over the course of to accommodate primarily some of the demands of the African States which had resulted in the deferral. The final version of the Declaration was adopted on 13 September by a landslide affirmative vote of States in the General Assembly. UNDRIP formulates the rights of indigenous peoples to the extent and in the structure and format that the international community of States has recognized them. Indigenous peoples generally do not aspire to statehood in the sense of the political independence of players in the Westphalian system of modern nation states.
The claim to indigenous sovereignty is primarily founded upon the aspiration to preserve their inherited ways of life, change those traditions as they see necessary, and to make their cultures flourish. The effective protection of indigenous culture is thus key to the understanding of the Declaration. It prohibits their forced removal and relocation article 10 ; their right to practice and revitalize their cultural traditions and customs, including the right to maintain, protect and develop past, present and future manifestations of such cultures article 11 ; their right to maintain, control, protect and develop their cultural heritage, traditional knowledge and cultural expressions article 31 ; and the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies as well as the restitution and repatriation of ceremonial objects and human remains article The right to establish and control educational systems and media in their own language and culture also addresses this concern articles 14, The collective consciousness of indigenous peoples, often expressed in creation stories or similar sacred tales of their origin, places them since time immemorial at the location of their physical existence.
More importantly, their beliefs make remaining at that place a compelling dictate of faith. UNDRIP is a solemn, comprehensive and authoritative response of the international community of States to the claims of indigenous peoples, with which maximum compliance is expected. Some of the rights stated therein may already form part of customary international law, others may become the fons et origo of later-emerging customary international law. Scholarly analyses of State practice and opinio juris have concluded that indigenous peoples are entitled to maintain and develop their distinct cultural identity, their spirituality, their language, and their traditional ways of life; that they hold the right to political, economic and social self-determination, including a wide range of autonomy; and that they have a right to the lands they have traditionally owned or otherwise occupied and used.
As the UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. On the domestic level, article 38 provides that States shall take appropriate measures, including legislation, to achieve the ends of the Declaration. This provision is increasingly complied with. Domestic courts now also start to make use of the Declaration as adopted, exemplified by the judgment by the Supreme Court of Belize in the consolidated cases of Aurelio Cal et al.
Similar arguments and decisions will be made, internationally and domestically, to ensure maximum compliance with the provisions of UNDRIP and the development of best practices under the guiding light of its general regime. Related Material A. Documents Report of the Special Rapporteur, Mr. Report of the Special Rapporteur, Mr. Doctrine Pekka Aikio and Martin Scheinin eds. Daes, Indigenous Peoples. The Vattelian idea of an international legal system based entirely on states in disregard of interests and influence of individuals and groups, weakened already through global struggles against slavery and individual scourges such as human trafficking, finally foundered on the ashes of the Holocaust: the idea that state sovereignty should be an impermeable shield against outside evaluation and intervention in cases of atrocities and wholesale abuses of individual human beings and groups thereof was no longer acceptable to a world community no longer content to tolerate state-sponsored offences that shocked the conscience of humankind.
Colonization 3 was to be remedied by self-determination; and individual abuses were to be set right and contained by human rights instruments and associated mechanisms of monitoring and control. This domestic development did not proceed equally over space and time. It experienced great leaps forward, but also suffered serious setbacks.
Its content is still not uniform as documented, inter alia , by the continuing controversy over the legal content of social, economic, and cultural rights. International law thus, content-wise, joined domestic law in its quest for substantive legitimacy through justice oriented at its usefulness to enhance human life on this planet. Law, international and domestic, after all, is intended to serve human beings and their aspirations, not the other way around. The human rights regime, in particular, was one which was created to protect the weak, the powerless, the vulnerable, as shown by historical experience.
It is there to protect, but also to allow those protected to flourish. Thus it may serve as a shield and a sword. Law is no longer seen, at least through the human rights lens of the early 21st century, as a protector of the status quo , if that situation is inconsistent with preferred value goals, or as a vehicle for social Darwinism although it may often still work out to be.
It is to empower the disempowered and dispossessed, to curb abuses, arguably also to provide access to the necessities of life. It intends to protect against discrimination and allow for self-determination of those who legitimately seek it. While the UN Declaration on the Rights of Indigenous Peoples and other pertinent international instruments encompass both individual and collective rights, one of the major objections to the novel rights of indigenous peoples has been that they are largely rights of collectivities, not individuals.
Thus, they appear to sit uneasily with the traditional human rights regime, which in the eyes of many is constructed around the interests and concerns of individual human beings. It runs counter to the inherent goal of any human rights regime of fostering the full development of a human being's potential. First, the psychosocial reality of a human community is manifest. Individuals feel parts of a community; their birth into certain ethnic, gender and societal categories, their upbringing in certain social settings, as well as their conscious choices make them members of certain groups.
Membership of a group is of fundamental importance to individuals, to their pursuit of self-realization, a key human need. Interaction with and reliance upon others is a conditio sine qua non for human existence. Furthermore, with respect to the philosophical moorings of human rights, 9 Immanuel Kant's ethical system revolving around the axiom of inviolate human dignity is not necessarily individualist in an exclusivist sense.
In order to respond holistically to human needs and aspirations, law thus needs to strive to protect both the individuals and the groups they form or are born into — communities of destiny or communities of choice. The vulnerability of individuals created the need for individual human rights; the vulnerability of groups, particularly cultures, creates the need for their protection. The critical questions of relevance to the human rights project are in this context: what deprivations of values targeting individuals as members of groups have taken place in recent history?
In order to achieve a world public order of human dignity, how may these deprivations be remedied?
Refworld | World Directory of Minorities and Indigenous Peoples - Nigeria
To answer this question, I suggest making a further distinction, i. They are primarily concerned about not being discriminated against by the ruling elites. Indigenous peoples are, by definition, organic groups, i. Collective entitlements in the field of human rights are thus here to stay. They are essential for the protection of cultural diversity, and indispensable for the protection of indigenous peoples and their ways of life. As discussed above, indigenous peoples constitute the prototype of an organic group: ideally, they aspire to spend their lives together — in virtually all aspects, not just a few.
Their essential characteristics are not only those of a heteronomously defined collectivity of human beings, discriminated against over time, but also of an autonomous, self-defined community with specific ways of life and a view of the world characterized by their strong, often spiritual relationship with the land the outside world regards them as the original inhabitants of. Such an opinion, however, would miss the point in various ways. It is in itself reductionist of the empirical reality of human beings, caricaturing individuals as purely economic actors interested exclusively in power and wealth.
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Man does not live by bread alone. A comprehensive view of human nature would comprehend that beyond power and wealth, human beings are motivated by a range of other goals: respect, well-being, affection, skills, enlightenment, and rectitude. There may be, indeed, there often are, mixed motives or aspirations. The law should allow access by all to the processes of shaping and sharing all of these aspirations, i. This is what an order of human dignity 24 demands. Indigenous peoples may be, and often are, at the bottom of the social and economic ladder in virtually all societies they live in.
Their other claims have historically asked for preservation of their endangered culture, their language, their lands. It is the realm of spirituality. It is the reality of inner worlds, cosmovisions. Still, it is a powerful force which motivates people across the globe in many places at least as powerfully as greed or the desire to remove vast material inequality.
As the leader of the Indian Nations Union in the Amazon, Ailton Krenak has formulated: When the government took our land … they wanted to give us another place … But the State, the government, will never understand that we do not have another place to go. The only possible place for [indigenous] people to live and to re-establish our existence, to speak to our Gods, to speak to our nature, to weave our lives, is where our God created us….
We are not idiots to believe that there is possibility of life for us outside of where the origin of our life is. Respect our place of living, do not degrade our living conditions, respect this life…. It is difficult to justify calling these professions of indigenous spirituality pretextual or strategic, or emanating from a false consciousness. There may be some indigenous persons who do live inauthentic lives, but so do members of other groups.
Without an opportunity to determine, sustain, and develop that integrity, their humanity — and ours — is denied. Similarly, the late Vine Deloria, Jr. There have been eclectic interpretations of human rights conventions which protect certain minority traditions, as in the jurisprudence of the European Court of Human Rights regarding the Roma, and there have been specific treaties, albeit not widely ratified, which protect indigenous peoples, such as ILO Convention No.
Cultural preservation and flourishing is thus at the root of the claims as recognized by the states; this goal, not primarily political or economic objectives, inspires the positive law guarantees. In this broad sense, all the rights of indigenous peoples are cultural rights, and any interpretation of these rights, whether in UNDRIP or other instruments and prescriptions recognizing rights of indigenous peoples, ought to keep this telos in mind.
The UN Declaration on the Rights of Indigenous Peoples is the most comprehensive answer yet to the demands of indigenous peoples. Its effect under positive international law, however, merits further scrutiny. Though not legally binding per se , a declaration may be or become binding to the extent that its various provisions are backed up by conforming state practice and opinio juris.
Gender roles, food system biodiversity, and food security in Indigenous Peoples' communities.
As standard of evaluation in this review, besides treaties the countries monitored are parties to, the Council uses the Universal Declaration of Human Rights. Similarly, in August , Professor S. As to the content of UNDRIP, as stated above, the effective protection of indigenous culture is key to its understanding. This fundamental policy goal undergirds, in particular, the novel prohibition of ethnocide against indigenous peoples Article 8 1 — going beyond the prohibition of genocide against them, as enunciated in Article 7 2 , 47 the prohibition of their forced removal and relocation Article 10 , their right to practise and revitalize their cultural traditions and customs, including the right to maintain, protect, and develop past, present, and future manifestations of such cultures Article 11 , including the right to manifest, practise, develop, and teach their spiritual and religious traditions, customs, and ceremonies, as well as the restitution and repatriation of ceremonial objects and human remains Article An indigenous people's language is central to its culture — an ever more important issue in view of the accelerating threat that those languages will vanish and the need for this alarming downward spiral to be brought to a halt.
The key treaty provision supporting UNDRIP's rights to culture is Article 27 of the International Covenant on Civil and Political Rights ICCPR : In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. These formulations reflect the desire of important nation-states to protect culture through individual rights of members of the group rather than collective rights of the groups themselves.
One of the other legal issues has been whether Article 27 requires positive measures to be taken to protect a culture. In its General Comment No. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. It has also been argued that the establishment and development of indigenous cultural institutions and systems that is, indigenous cultural autonomy is properly located within the concept of collective cultural rights addressed by provisions such as Article 27, and not within the sphere of self-determination addressed by Article 1 of the ICCPR, for example — a concept referred to as essentially belonging to the political, or power, domain.
More importantly, their beliefs make remaining at that place a compelling dictate of faith. The struggle of indigenous peoples led to a treaty which recognized the rights of groups, particularly with respect to resources, as formulated in the ILO Convention No. In addition, global comparative research on state practice and opinio juris over a period of five years in the late s reached certain conclusions about the content of newly formed customary international law regarding the rights and status of indigenous peoples.
The worldwide indigenous renascence had led to significant changes in constitutions, statutes, regulations, case law, and other authoritative and controlling statements and practices of states which had substantial indigenous populations. Indigenous people achieved this dramatic victory through several means: a peace treaty in Guatemala, constitutional and statutory changes in countries such as Brazil, 83 and modifications of the common law in Australia and other states. Indigenous culture, language, and tradition, to the extent that they have survived, are increasingly inculcated and celebrated.
This now very widespread state practice and opinio juris regarding the legal treatment of indigenous peoples allowed the following conclusion in First, indigenous peoples are entitled to maintain and develop their distinct cultural identity, their spirituality, their language, and their traditional ways of life.
Second, they hold the right to political, economic and social self-determination, including a wide range of autonomy and the maintenance and strengthening of their own system of justice. Third, indigenous peoples have a right to demarcation, ownership, development, control and use of the lands they have traditionally owned or otherwise occupied and used. Fourth, governments are to honor and faithfully observe their treaty commitments to indigenous nations.
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The Inter-American Commission on Human Rights made the key step from the global research effort to a practical application of those conclusions to the international legal status of indigenous peoples. Referring to this study and the opinions of other international legal scholars to argue for a new principle of customary international law, 86 the Inter-American Commission submitted the case of an indigenous group in the rainforest of Nicaragua to the Inter-American Court of Human Rights.
The tribunal, in its celebrated Awas Tingni judgment of 31 August , 87 affirmed the existence of an indigenous people's collective right to its land. It stated: Through an evolutionary interpretation of international instruments for the protection of human rights, taking into account applicable norms of interpretation and pursuant to article 29 b of the Convention — which precludes a restrictive interpretation of rights —, it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua.
Given the characteristics of the instant case, some specifications are required on the concept of property in indigenous communities. Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community.
Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.
Other decisions in the same vein followed, including a recent decision involving Suriname. Still, such a radical re-interpretation of the treaty can only be based on a significant shift in the normative expectations of the states. It is most conceivable that the evidence for such a shift is found in the same material that has been adduced to prove customary international law: pertinent state practice and opinio juris. It is no surprise that courts not bound by such jurisdictional restraints clearly express their legal opinion.
On 18 October , Chief Justice A. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
There are also rights to the improvement of their social and economic conditions Articles 17, 21, 22, and 24 ; rights to development Article 23 and international cooperation Articles 36, 39, 41, and 42 ; treaty rights Article 37 ; as well as certain rights to redress and reparations e. This language is best construed as referring to such human rights standards as have achieved the status of customary international law. These principles are intended to serve as an interpretative framework of UNDRIP and not as a substantive limit to its rights. Over the last half-century, the legal status of indigenous peoples around the world has significantly improved.
Substantial challenges, though, remain, particularly in the areas of enforcement and implementation. In sum, the state of indigenous peoples worldwide and pertinent recommendations are as follows:. Indigenous peoples are vulnerable organic groups with a special relationship to their ancestral lands. The international legal regime that is emerging or has emerged to ensure their protection and flourishing is a tailor-made response to their needs and aspirations as they articulate them themselves.
Its policy basis, as internationally agreed upon, is the goal of cultural diversity — motivated variously by the respect for the autonomy of a radically different way of life or the general public's enjoyment of its artistic products or the learning of lessons from it for dealing with nature and life in general. This guiding light of safeguarding the cultures of indigenous peoples has led to prescriptions which not only protect against physical and legal encroachments upon the people, their languages, and rituals, as well as the lands inextricably linked to their traditional ways of life; they also mandate governmental efforts affirmatively to foster the education of indigenous people in their native tongue, the inculcation of their culture in state media, and the development of media of their own to encourage the flourishing of their cultural heritage.
For this goal of addressing the threat to indigenous communities to work, both individual and collective rights are needed. As explained above, the individual cannot live without the community he or she is an essential part of, and the community cannot survive without its individual members; both influence each other. Rights of both the community and its individual members thus constitute the proper legal response.
The traditional dichotomy of individual and collective rights, with a wary eye on the latter, needs to be overcome to ensure the cultural survival of threatened and vanishing communities and traditions.
1 International Law in the 21st Century: A Value-Oriented Regime
In its place, an order of human dignity with specific functional rules needs to be established which works to allow indigenous peoples to survive and to flourish. To that end, it makes sense to define flourishing, with policy-oriented jurisprudence, as the maximization of access by all to all things humans value — here, within the indigenous group and beyond. One key value here is rectitude, as the law of human relations within the indigenous group and with the living and non-living resources of the people has been determined by traditions from time immemorial; another one is affection, the bond of family and ethnic community.
Misunderstandings have arisen regarding the claims of indigenous peoples, particularly those to land and natural resources as well as those to self-determination. Cultural rights thus include not only rights to culture narrowly conceived, i. As their traditional lands are critical to the survival of the culture of indigenous peoples, the legal status of these properties ought to reflect this essential purpose.
As the purpose of individual property law protections has been redefined from the maximization of economic benefits to the flourishing of humans 94 beyond the accumulation of wealth, the protection of indigenous cultures through collective property rights has to be guided by similar criteria of the blossoming of peoples. The management of indigenous property rights, properly understood, would thus be guided by the culture of the people holding them, dynamic as this concept is. This would, in some cases, as in the US in the absence of formal ownership rights which are often held by the federal government, mean a right to use coupled with an obligation of stewardship toward the resource, for the benefit of future generations of the community and for the planet.
Even then, the Court trusts in the use of this collectively held land to the benefit of the community long-term. Indigenous self-determination also is best understood from its cultural foundation.