Indigenous peoples and Human rights

Indigenous peoples and Human rights

Patrick Thornberry
Copyright Date: 2002
Pages: 288
https://www.jstor.org/stable/j.ctt155jg1p
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    Indigenous peoples and Human rights
    Book Description:

    This book is the first full-length study of the rights of indigenous peoples, and looks at the historical, cultural, and legal background to the position of indigenous peoples in a range of different cultures, including America, Africa and Australia. The book defines who and what indigenous peoples actually are, and looks at their position in the light of the development of international law. It then looks at their legal position, and their economic, social and cultural rights in respect of various laws and conventions passed on a national and international scale throughout the world. Among the global and regional legal instruments considered in the book are The International Covenant on Civil and Political Rights, the UN Convention on the Rights of the Child, the Racial Discrimination Convention, The African Charter on Human and Peoples Rights, the UN Draft Declaration in Indigenous Peoples and The Proposed American Declaration on the Rights of Indigenous Peoples. The development of human rights legislation and principles as a central tenet of international law has been of considerable benefit to indigenous peoples, although the language of human rights does not always suit indigenous societies, and sets apparent limits to the kind of social practices embraced. This is still a vitally important issue and the emotional subject of reciprocity still needs to be handled sensitively. This book will be of vital benefit to students of international law and human rights.

    eISBN: 978-1-84779-122-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Table of cases
    (pp. vii-x)
  4. List of abbreviations
    (pp. xi-xii)
  5. Introduction
    (pp. 1-10)

    The present work does not attempt to explore the whole of international law as it connects with the indigenous. The focus is principally onhuman rights instruments and principles. A chapter also attempts to unravel some of the historical underpinnings of the relationship between indigenous peoples and the system we understand as international law. The author broadly shares the sentiments expressed by,inter alios, Brownlie and Merrills,¹ in support of the idea that human rights, or minority rights, or indigenous rights, are part of that system. On the other hand, human rights, minority and indigenous rights are capable of engendering...

  6. Part I Indigenous peoples in international law:: basic notions
    • 1 We are still here
      (pp. 12-32)

      A great flow of contemporary discussion and debate has made an international public increasingly aware of the presence of peoples described as indigenous, who appear to exist in every inhabited region of the globe. Some names associated with the term ‘indigenous’ are familiar to a wide public: the Australian Aborigines, the Crees, the Guarani, the Igorot and Inuit, the Jumma and the Kuna, the Maasai, the Maori, the Mapuche and the Maya, the Mbuti (Pygmies), Miskitos and Mohawk, the Navajo, the San/Basarwa (Bushmen) of the Kalahari, the Saami, Sioux, Tuareg and Yanomami.² Knowledge of names may be matched by a...

    • 2 Who is indigenous?: Concept, definition, process
      (pp. 33-60)

      The previous chapter presented raw statistics which claim to account for an indigenous world. The variability of data suggests that further effort is needed to appraise the underlying concepts through a legal/conceptual lens. The draft Declaration does not define the subjects of its concern. The WGIP ‘floated’ along for years without undertaking a serious examination of the scope of its developing standards, with the definition proposed by Sub-Commission Special Rapporteur Martinez-Cobo functioning as a vague gatekeeper – the WGIP performs its tasks ‘bearing in mind’ his report.² Despite embracing sundry groups from all continents,³ the Working Group was stirred by...

    • 3 Ambiguous discourses: indigenous peoples and the development of international law
      (pp. 61-88)

      Discussion of concept and practice on indigenous peoples facilitates responses to the question of whose history is to be recalled from among the infinity available. The retrospective element in the definitions suggests that we should find relevant histories in and beyond the discourses of colonialism; our presumptive universalism suggests that the frame for a search is global.¹ The draft Declaration is replete with historical recollection. The preamble expresses the concern that the peoples have been deprived of their human rights ‘resulting,inter alia, in … colonization and dispossession of their lands, territories and resources’. References in the body of the...

    • 4 The age of rights
      (pp. 89-114)

      If the iron cage of sovereignty-based international law continued to imprison the legal imagination, its power loosened significantly in the twentieth century. In terms of State actors, the opening out of the system to all ‘peace-loving’ States² under the impetus of self-determination implied that the Eurocentric mould was broken or badly damaged.³ On possible types of international actor/participant,⁴ the phrases of the ICJ in theReparations casecontinue to resound:

      The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of...

  7. Part II Global instruments on human rights
    • 5 The International Covenant on Civil and Political Rights I
      (pp. 116-150)

      The International Covenant on Civil and Political Rights (ICCPR)¹ was adopted by the UN General Assembly and entered into force on 23 March 1976.² The Covenant has been ratified by 148 States,³ including many with significant indigenous populations. On the other hand, the non-parties also include many States with indigenous populations, including Bangladesh, Indonesia,⁴ Malaysia, Myanmar, Pakistan and Papua New Guinea. The Covenant is a complex statement of rights incorporating several domains of discourse: those of collective rights (self-determination), undifferentiated individual rights (most of the text), and minority rights (Article 27); it does not include a specific article on indigenous...

    • 6 The International Covenant on Civil and Political Rights II: Article 27 and other global standards on minority rights
      (pp. 151-181)

      The most regular examinations of indigenous issues by the HRC in the reporting procedure and under the Optional Protocol have taken place in connection with Article 27:

      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 practise their own religion, or to use their own language.

      The examination of indigenous rights has proceeded despite the fact that Article 27 deals with ‘minorities’ and not indigenous groups. As noted in a...

    • 7 The Covenant on Economic, Social and Cultural Rights
      (pp. 182-198)

      The Covenant on Economic, Social and Cultural Rights (ICESCR) does not contain a specific article on indigenous groups or – unlike the ICCPR¹ – on minorities.² None the less, concern about the conditions of indigenous life has exercised the Committee on Economic, Social and Cultural Rights (the ESC Committee) on many occasions and will doubtless continue to do so. The Covenant is structured as a programmatic or promotional human rights treaty.³ The basic obligation for the States’ parties is set out in Article 2.1 whereby each party ‘undertakes to take steps … to the maximum of its available resources, with...

    • 8 Racial discrimination and indigenous peoples – in particular under the Racial Discrimination Convention
      (pp. 199-224)

      The major instrument of the UN devoted to the issue of race discrimination is the International Convention on the Elimination of All Forms of Racial Discrimination (ICEARD). The Convention – preceded by a Declaration on the same subject¹ – was adopted by the GA on 21 December 1965 by 106 votes to 0,² and entered into force on 4 January 1969.³ By December 2001, the Convention had 161 States’ parties. The text incorporates a preamble of twelve paragraphs, seven substantive articles (Part I of the Convention), a further nine articles addressing implementation (Part II) and nine articles on entry into...

    • 9 The UN Convention on the Rights of the Child: in particular Article 30
      (pp. 225-242)

      The Convention on the Rights of the Child (CRC) is the latest of the major UN treaties on human rights. The Convention follows a 1959 UN Declaration on the Rights of the Child,¹ and was adopted by the General Assembly of the UN in 1989,² coming into force in 1990 after the twentieth ratification.³ It is the most widely ratified human rights treaty emanating from the UN⁴ – only two States have not become parties.⁵ The Convention is extensive, with fifty-four articles in total; the substantive provisions are set out in Articles 1 to 41.⁶ The text contains a mix...

  8. Part III Regional human rights protection and indigenous groups
    • 10 The African Charter on Human and Peoples’ Rights; African perspectives on indigenous peoples
      (pp. 244-264)

      The strictures of Special Rapporteur Alfonso Martinez concerning the concept of indigenous peoples in Africa and Asia will be recalled. His comments flag up the possibility that indigenousness raises difficult questions for African States, most of which are relatively recent beneficiaries of the decolonisation movement, and governed by indigenous political élites. African States, according to one author, represent a mixture of pre-colonial and Western structures.¹ In the former – political societies rather than States – the emphasis has supposedly been on community; a feature which produces the claim that ‘The vast majority of the people still exhibit unflinching loyalty to...

    • 11 The Inter-American system and indigenous peoples
      (pp. 265-289)

      The importance of the Americas in historical discourses on indigenous peoples¹ and for the contemporary growth of indigenous consciousness in international law has been commented upon above.² Many of the world’s indigenous peoples are found within the jurisdictions of the member States of the Organisation of American States (OAS).³ The OAS is the latest of a succession of American organisations,⁴ and was established at the Ninth International Conference of American States, held in Bogota in 1948.⁵ The OAS accomplishes its purposes through: the GA which meets annually and in special sessions; the Meeting of Consultation of Ministers of Foreign Affairs;...

    • 12 European instruments on human and minority rights
      (pp. 290-318)

      Emanating principally from the Council of Europe, key European instruments have considerable potential to advance human rights strategies of indigenous groups. The Council of Europe was founded in 1949 as a European organisation for intergovernmental and parliamentary cooperation. The central motive for the creation of the Council was the need to secure democracy in the light of recent and actual totalitarianism and to prevent the recurrence of the gross violations of human rights which took place under Nazi instigation. According to its Statute, the aim of the Council is to ‘achieve a greater unity between its members for the purpose...

  9. Part IV ILO treaties on indigenous peoples
    • 13 ILO standards I
      (pp. 320-338)

      In the matter of general instruments on indigenous peoples, the ILO was first in the field. As noted, ILO Conventions 107 and 169 are in force, although the former is now closed to ratification. Both employ, to differing extents, the language of collective rights – rudimentary in the first treaty, massively conditioning the second. They represent the bulk of contemporary hard law of international indigenous rights. They work within the context of the ILO, but interrelate with the general world of human rights. They offer adapted general rights as well as specific rights not found elsewhere in international treaty law....

    • 14 ILO standards II: Convention 169
      (pp. 339-368)

      In November 1986, the Governing Body of the ILO decided to include on the agenda of the 75th Session of the International Labour Conference in 1988 a first discussion of the partial revision of Convention 107. The International Labour Office prepared a lengthy law and practice report which included the report of the Committee of Experts as an appendix and a questionnaire of eighty questions for governments and representatives of employers and workers.¹ The introduction to the report suggested, in a formula summarised by the International Labour Office, that

      in preparing their replies … governments should consult representatives of indigenous...

  10. Part V Emerging standards specific to indigenous peoples
    • 15 The UN draft Declaration on the Rights of Indigenous Peoples
      (pp. 370-396)

      The draft Declaration on the Rights of Indigenous Peoples has been referred to at many points in the present text, and the content has been briefly summarised in an earlier chapter.Inter alia, it has been utilised as a statement of indigenous claims, a guide to understanding the indigenous concept, and a ‘heuristic’ or standard to measure the development of international human rights law. The present chapter takes the Declaration as a potential future global standard for indigenous peoples – ‘emerging law’ – and appraises its principal characteristics. The chapter is not intended as a full commentary: it should be...

    • 16 The Proposed American Declaration on the Rights of Indigenous Peoples
      (pp. 397-404)

      Following a resolution of the OAS General Assembly – itself prompted by the Inter-American Commission on Human Rights¹ – the IACHR began consultations in 1992–93 ‘Concerning the Future Inter-American Legal Instrument on Indigenous Rights’,² having recognised the need for such an instrument from the late 1980s.³ The consultations eventuated in a ‘Draft of the Inter-American declaration on the Rights of Indigenous Peoples’, approved by the Inter-American Commission on Human Rights on 18 September 1995,⁴ revised to a ‘Proposed American Declaration on the Rights of Indigenous Peoples’, approved by the Commission on 26 February 1997.⁵ A draft was presented to...

  11. Part VI Indigenous peoples and human rights
    • 17 Indigenous peoples and the discourses of human rights: a reflective narrative
      (pp. 406-430)

      The system of human rights is not closed. It is theoretically possible that forms of closure of normative categories will in time descend on indigenous groups, disabling the groups (normatively) from accessing minority rights, just as minorities are not encouraged to access indigenous rights. Such an outcome is not certain, and appears improbable in the present state of international law and relations. Closing off categories is also dubious morally and practically for indigenous groups; it would deny commonality with other vulnerable groups, other tortures, other sufferings and reduce complex questions of identity to a single track. The ‘parallel universe’ aspect...

  12. Annexes
    • 1 ILO Convention No. 107 on Indigenous and Tribal Populations
      (pp. 432-440)
    • 2 ILO Convention No. 169 on Indigenous and Tribal Peoples
      (pp. 441-452)
    • 3 UN draft Declaration on the Rights of Indigenous Peoples
      (pp. 453-462)
    • 4 CERD General Recommendation VIII: identification with a particular racial or ethnic group
      (pp. 463-463)
    • 5 CERD General Recommendation XXIII: indigenous peoples
      (pp. 464-465)
    • 6 CERD General Recommendation XXIV: reporting of persons belonging to different races, etc.
      (pp. 466-467)
    • 7 General Comment of the HRC on the rights of minorities
      (pp. 468-471)
  13. Select bibliography
    (pp. 472-480)
  14. Index
    (pp. 481-484)