Professional Documents
Culture Documents
Xantha Ki
Xantha Ki
CONTENTS
I Introduction............................................................................................................... 1
II UN Bodies and Indigenous Rights............................................................................ 1
III The Declaration on the Rights of Indigenous Peoples ............................................. 3
IV Regional Bodies........................................................................................................ 6
V The Future of Indigenous Rights .............................................................................. 8
I INTRODUCTION
Indigenous rights have been a prominent issue in the international arena in the
past decade. Although the major development in this area has been the adoption
of the United Nations Declaration on the Rights of Indigenous Peoples1 in 2007,
other developments should not be underestimated: the establishment of ongoing
mechanisms in the United Nations, specifically on the situation and concerns of
indigenous peoples; the interpretation of general standards in a manner
favourable to indigenous claims by international bodies; and the development of
strong regional standards on indigenous rights are some of the most important. In
all these developments, the transnational indigenous movement has been
instrumental. Without overlooking differences — and at times tensions —
between indigenous groups on claims and tactics, their common strategies have
borne significant results.
* Ptychion (Athens); LLM (Queen’s University Belfast); PhD (Keele); Senior Lecturer,
Deputy Head (Programmes), Brunel Law School, Brunel University.
1 GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, UN Doc A/RES/61/295
(13 September 2007) (‘Declaration’).
2 International Covenant on Civil and Political Rights, opened for signature 16 December
1966, 999 UNTS 171 (entered into force 23 March 1976).
3 Äärelä and Näkkäläjärvi v Finland, HRC, Communication No 779/1997, UN Doc
CCPR/C/73/D/779/1997 (24 October 2001).
4 CERD, Report of the Committee on the Elimination of Racial Discrimination, UN GAOR,
52nd sess, Annex V, UN Doc A/52/18/(SUPP) (26 September 1997) (General
Recommendation No 23: Indigenous Peoples).
Melbourne Journal of International Law [Vol 10
11 The Programme to Promote ILO Convention No 169 on Indigenous and Tribal Peoples
(‘PRO 169’) aims to promote the rights and improve the socio-economic situation of
indigenous and tribal peoples, in compliance with the principles of Convention No 169. At
the international level, PRO 169 contributes to coordination through the UN Permanent
Forum on Indigenous Issues and the Inter-Agency Support Group (‘UNPFII’)
<http://www.ilo.org/indigenous/Aboutus/PRO169/lang--en/index.htm>.
12 For example, in the Latin American region, there exist approximately 642 indigenous towns,
with their combined population fluctuating between 30 and 50 million people. In various
countries in the region, such as Bolivia or Guatemala, indigenous peoples constitute the
majority of the population. Some of the indigenous groups from Latin America that the ILO
assists include: Guatemala: Achí, Akateko, Awakateko, Ch’ortí, Chuj, Ixil, Itzá, Kaqchikel,
K’iché, Mam; Honduras: Pech, Nahuas, Lencas, Tolupanes, Garífunas, Misquitos,
Tawahkas, Chorti; Argentina: Wichí, Mocoví, Pilagá, Guaraní, Chiriguano, Chané, Chulupí
<http://www.ilo.org/indigenous/Activitiesbyregion/LatinAmerica/lang--en/index.htm>.
13 Police v Adbulla (1999) 74 SASR 337, [37] (Perry J).
14 World Bank, Operational Manual: OP 4.10: Indigenous Peoples (July 2005) [1] available
from <http://www.worldbank.org>.
15 Declaration, above n 1, art 23.
Melbourne Journal of International Law [Vol 10
and rights to redress for past injustices have also been included in the final
version of the text.16
The importance of the Declaration is twofold. First, it gives indigenous
peoples around the world long-awaited protection of their rights. Although
Convention No 169 and its predecessor, the International Labour Organization
Convention (No 107)17 have recognised a range of rights with respect to
indigenous peoples — and in some cases, such as in the provision on the
demarcation of indigenous lands, have gone further than the Declaration — their
small number of signatories has limited the protection that they can give. In this
respect, the Declaration is able to make an impact on a wider scale. Second, the
Declaration also has a substantial impact beyond indigenous peoples: it
significantly contributes to the clarification and evolution of several areas of
international law. Although many provisions crystallise non-controversial rights
for indigenous peoples, other provisions recognise rights that, although in
accordance with current norms of international law, have not been explicitly
included in general human rights instruments. An example is the prohibition of
ethnocide, included in art 8 of the Declaration. Even more radical are provisions
that actually push the contours of current international law.
The recognition of indigenous self-determination is a notable example; one
that has the potential to change indigenous groups’ situations, but which also
significantly evolves the standards of international law. During the 25 years of
the elaboration of the Declaration, the inclusion of the right to self-determination
in the text often seemed too ambitious. States were very vocal in their opinions
that such a right is only recognised to whole populations of states; and prior
practice and the prevailing interpretations were generally not favourable to
indigenous peoples.18 Although many could see that the recognition of only the
internal aspect of self-determination would fall short of both indigenous peoples’
status and their needs, the compromised solution of international
self-determination started gaining more weight in the later stages of the
elaboration of the draft. The final version is indeed a huge success for indigenous
peoples and human rights: art 3 recognises indigenous peoples’ full and
unqualified right of self-determination, art 4 focuses specifically on
self-government and autonomy, and art 46(1) repeats the usual caveat of
territorial integrity. Hence, indigenous peoples are accorded an unqualified right
to self-determination that does not extend to secession, and focuses on — but is
not limited to — self-government. In essence, the extent of their right is no
different from that of any other current beneficiary of the right. This is a major
step forward: international law and practice have never before agreed to
recognise the unqualified right of self-determination to sub-national groups.
The Declaration also put an end to discussions about the recognition — or
non-recognition — of collective rights for sub-national groups in current
international law. The language of art 27 of the ICCPR and the 1992 Declaration
IV REGIONAL BODIES
The triumph of the adoption of the Declaration should not obscure the
importance of the Inter-American jurisprudence on indigenous issues developed
in the last decade. Both the Inter-American Commission on Human Rights and
the Inter-American Court of Human Rights have become a point of reference at
the international level for land rights and natural resources. The decision in Awas
Tingni v Nicaragua has been viewed as the definitive point.24 In this case,
Nicaragua argued that the indigenous group in question did not have formal
entitlement over their lands because they did not have a formal title deed. The
Inter-American Court however accepted that the right to property under the
American Convention on Human Rights25 should also uphold indigenous title
deriving from customary law, and found a positive state obligation to recognise
indigenous land tenure through demarcation.26 This was the first binding
international decision to recognise such a collective right to indigenous peoples
and to interpret the American Convention in such manner that recognises
indigenous collective rights. This was subsequently confirmed by the
Inter-American Commission on Human Rights in Marie and Carrie Dann v
US,27 where the Commission accepted that for reasons of equality, indigenous
peoples’ own connections with their lands are a form of property and fall within
the protection of art 23 of the American Declaration on the Rights and Duties of
Man,28 irrespective of the individual focus of the instrument.29 In the Yakye Axa
Community Case, the Inter-American Court identified the ‘close ties of
indigenous peoples with their traditional territories and the natural resources
therein associated with their culture’ and upheld that they ‘must be safeguarded
23 See George Ulrich and Louise Krabbe Boserup (eds), Human Rights in Development
Yearbook 2001: Reparations: Redressing Past Wrongs (2003).
24 Mayagna (Sumo) Awas Tingni Community v Nicaragua [2001] Inter-Am Court HR (ser C)
No 79; Luis Rodríguez-Piñero, ‘The Inter-American System and the UN Declaration:
Mutual Reinforcement’ in Stephen Allen and Alexandra Xanthaki (eds), Reflections on the
UN Declaration on the Rights of Indigenous Peoples (2009) (forthcoming).
25 Opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978)
(‘American Convention’).
26 For the complete documents of this case, see ‘Symposium’ (2002) 19(1) Arizona Journal of
International and Comparative Law.
27 Inter-American Commission on Human Rights, Mary and Carrie Dann v US, Rep No 75/02,
Case No 11.140 (27 December 2002).
28 American Declaration of the Rights and Duties of Man, OAS Res XXX (1948).
29 For an analysis of this case, see S James Anaya, ‘Keynote Address: Indigenous Peoples and
Their Mark on the International System’ (2007) 31 American Indian Law Review 257.
2009] Indigenous Rights in International Law
30 Yakye Axa Indigenous Community v Paraguay [2005] Inter-Am Court HR (ser C) No 125
[137]. See also Inter-American Commission on Human Rights, Yakye Axa Indigenous
Community of the Enxet-Lengua People v Paraguay, Rep No 2/02, Pet 12.313 (27 February
2002); Sawhoyamaxa Indigenous Community v Paraguay [2006] Inter-Am Court HR (ser C)
No 146; Moiwana Community v Suriname [2005] Inter-Am Court HR (ser C) No 124.
31 Saramaka People v Suriname [2007] Inter-Am Court HR (ser C) No 172 [122].
32 Yatama v Nicaragua [2005] Inter-Am Court HR (ser C) No 127.
33 Plan de Sánchez Massacre v Guatemala [2004] Inter-Am Court HR (ser C) No 105;
Moiwana Village v Suriname [2005] Inter-Am Court HR (ser C) No 145; Moiwana
Community v Suriname [2005] Inter-Am Court HR (ser C) No 124.
34 Sawhoyamaxa Indigenous Community v Paraguay [2005] Inter-Am Court HR (ser C) No
125, 178.
35 Gabriella Citroni and Karla I Quintana Osuna, ‘Reparations for Indigenous Peoples in the
Case Law of the Inter-American Court of Human Rights’ in Federico Lenzerini (ed),
Reparations for Indigenous Peoples: International and Comparative Perspectives (2008)
317.
36 African Commission on Human and Peoples’ Rights, Twelfth Annual Activity Report of the
African Commission on Human and Peoples’ Rights: 1998–1999 (ACHPR Report No
AHG/215 (XXXV), 1999) 17.
37 African Commission on Human and Peoples’ Rights, Resolution on the Rights of Indigenous
Peoples’ Communities in Africa, ACHPR Doc No ACHPR/Res.51 (XXVIII)00
(6 November 2000).
38 Rachel Murray, ‘The UN Declaration in Africa: The Approach of the Regional Organisation
to Indigenous Peoples’ in Stephen Allen and Alexandra Xanthaki (eds) Reflections on the
UN Declaration on the Rights of Indigenous Peoples (2009) (forthcoming).
Melbourne Journal of International Law [Vol 10
39 African Commission on Human and Peoples’ Rights, Report of the African Commission’s
Working Group of Experts on Indigenous Populations/Communities (2005) 88.
40 Assembly of the African Union, Decision on the United Nations Declaration on the Rights
of Indigenous Peoples, 8th ord sess, AU Doc Assembly/AU/Dec141(VIII)Add.6 (29–30
January 2007) 6.
41 African Commission on Human and Peoples’ Rights, Advisory Opinion of the African
Commission on Human and Peoples’ Rights on the United Nations Declaration on the
Rights of Indigenous Peoples (adopted by the 41st ord sess, 16–30 May 2007).
42 African Commission on Human and Peoples’ Rights, Resolution on the Composition and
Renewal of the Mandate of the Working Group on Indigenous Populations/Communities in
Africa, Doc No ACHPR/Res.123 (XXXXII) 07 (28 November 2007).
43 African Commission on Human and Peoples’ Rights, Communiqué on the UN Declaration
on the Rights of Indigenous Peoples (28 November 2007). The Communiqué was adopted
by Resolution on the United Nations Declaration on the Rights of Indigenous Peoples, Doc
No ACHPR/Res.121 (XXXXII) 07 (28 November 2007).
44 CEMIRIDE (on behalf of the Endorois Welfare Council) v Kenya, Communication
276/2003, cited in Clive Baldwin and Cynthia Morel, ‘Group Rights’ in Malcolm Evans and
Rachel Murray (eds), The African Charter on Human and Peoples’ Rights, The System in
Practice 1986–2006 (2nd ed, 2008) 244, 270.
45 Alexkor Ltd v Richtersveld Community [2004] 5 SA 460 (CC) (‘Richtersveld’).
46 Sesana & ors v Attorney General (52/2002) [2006] BWHC 1.
2009] Indigenous Rights in International Law
transform [declarations’] legal status into something more’.58 In any case, this is
an instrument solidly based within current international law.
As long as the Declaration is used by international and national bodies as an
authority on indigenous standards, it will be able to change indigenous national
situations irrespective of its specific international status. Indeed, since its
adoption, many bodies have established the Declaration as the source of
standards on indigenous rights. In addition to national and international case law
referred to above, the UNPFII has agreed that the Declaration will guide its
work. Similarly, the UN Development Group, composed of all the various UN
programs, bodies and agencies working on development, has acknowledged the
Declaration as the appropriate framework for the implementation of their
Guidelines on Indigenous Peoples’ Issues.59 Also, the Ninth Conference of
Parties to the Convention on Biological Diversity, held in May 2008, also
included the Declaration in several of the decisions of the various working
groups. The international monitoring of the standards set in the Declaration has
already been initiated by the UN Special Rapporteur on Indigenous Issues, who
has made it clear that he will follow the standards set by the Declaration, and the
Expert Mechanism on Indigenous Rights, who will also use the Declaration as
its basis.
It is hoped that shortly the Declaration will be widely recognised as the
interpretative source of the human rights treaties on indigenous rights, and that
its position as the international benchmark by which national indigenous policies
are judged will be unquestionable. Domestic and international litigation
continues to be crucial. It is also hoped that other international instruments, such
as the Inter-American Declaration on Indigenous Peoples, will clarify and
promote indigenous rights even further. Will these undoubtedly positive
developments on indigenous rights also bring developments to other sub-national
groups? Unfortunately, in contrast to the indigenous rise, national security
concerns have brought a decline to minority rights in the last decade.60 Whether
other groups will benefit from the opportunities that the development of
indigenous rights have created, and the strategies the indigenous movement has
highlighted, remains to be seen.
58 Ibid 148.
59 See UN Development Group, Guidelines on Indigenous Peoples’ Issues (1 February 2008).
60 Will Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy’ in Stephen Allen and
Alexandra Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous
Peoples (2010) (forthcoming).