This book is a full-length study of the rights of indigenous peoples in international law, focusing in particular on instruments of human rights. The primary reference point is contemporary law, though the book also examines the history of indigenous peoples through the lens of historical legal discourses. The work critically assesses the politics of definition and analyses contested definitions and descriptions of indigenous groups. Most of the chapters are devoted to detailed examination of existing and emerging human rights texts at global and regional levels. Among the instruments considered in the book are the International Covenants on Human Rights, the UN Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, the African Charter on Human and People's Rights, and the ILO Conventions on Indigenous and Tribal Peoples.
This introductory chapter briefly sets out the focus of the book, namely human rights instruments and principles. The explorations in the present work suggests a measure of openness in the articulation and application of human rights norms—that they are developmental, adaptive and sensitive to a degree to local interpretations—imperfectly expressed in doctrines such as the ‘margin of appreciation’. The chapter then addresses questions regarding the coherence of the concept of indigenous peoples; the modalities through which indigenous rights should be advanced; the extent to which cultural expression can be qualified in the name of human rights; the nature of the indigenous engagement with international law and institutions; and the limits of contemporary human rights discourse and its potential to accommodate indigenous concepts, mores and world-views.
This chapter presents raw statistics which claim to account for an indigenous world. It begins with a discussion of the identities and names of indigenous peoples. It then considers debates over the question of how many indigenous populations exist on the planet, followed by a discussion of the rights abuses and other assaults upon the dignity experienced by indigenous peoples. It describes the Working Group on Indigenous Populations, a Permanent Forum for Indigenous People, the draft Declaration on the Rights of Indigenous Peoples, summits, and regional organizations.
This chapter takes a preliminary look at indigenous peoples through a selection of general statements which represent key indicators of international law and practice. Most of the instruments and statements assessed here were drafted primarily by governments and thus reflect a largely external view. In contrast, the draft Declaration and indigenous statements can be quarried to provide a window on the self-understanding of indigenous groups. The chapter deals in the broad conceptualisation of the issue, including complications from the ‘neighbour effects’ of rights of minorities and rights of peoples generally. The narrower question of definition is also accounted for. Conventional approaches to concept and definition involve recourse to subjective (the will to survive) and objective factors (possession of distinct ‘characteristics’). These have been supplemented by problematising approaches which seek to illuminate the web of ethical, political, and epistemological considerations justifying the use of ‘indigenous’, and its contestation.
Indigenous peoples and the development of international law
This chapter traces a series of discourses to which indigenous peoples were subjected, including the development of notions of trust or guardianship and it looks at the early work of the International Labour Organization. The conclusion reflects briefly on the beginnings of the engagement of indigenous groups with contemporary instruments and concepts, with their promise of renewal and empowerment.
The iron cage of sovereignty-based international law loosened its power significantly in the twentieth century. A range of entities—States, international organisations, peoples, individuals, transnational corporations, etc.—presently participate in international law, as do indigenous peoples and minority groups. This flexibility is reflected only to a limited extent in current articulations of sources of international law. The entities do not all participate in the same way: State rights are not the same as rights for individuals; rights and duties of organisations are linked to the specifics of their mandates; rights of peoples are not the same as rights of minorities. This chapter discusses the UN Charter, general aspects of self-determination, general aspects of human rights and international action in support of human rights.
The International Covenant on Civil and Political Rights (ICCPR) was adopted by the UN General Assembly and entered into force on 23 March 1976. The Covenant has been ratified by 148 States, including many with significant indigenous populations. 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 rights. The First Optional Protocol to the ICCPR, which allows for communications from individuals who claim to be victims of violations of Covenant rights, has 98 States' parties. In the main text of the ICCPR and the Optional Protocol, procedures for implementation centre on the eighteen-member Human Rights Committee (HRC), elected as independent experts by secret ballot of the States' parties. The Committee formally takes decisions by simple majority, but working methods allow for attempts to reach a consensus—an approach ‘which has been the rule ever since the Committee' inception’.
Article 27 and other global standards on minority rights
The most regular examinations of indigenous issues by the Human Rights Committee 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.
The Covenant on Economic, Social, and Cultural Rights (ICESCR) does not contain a specific article on indigenous groups or on minorities. None the less, concern about the conditions of indigenous life has exercised the Committee on Economic, Social and Cultural Rights on many occasions and will doubtless continue to do so. The Covenant is structured as a programmatic or promotional human rights treaty. 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 a view to achieving progressively the full realization of the rights’ recognised in the Covenant. The Covenant highlights the bleak truth about the existence of many indigenous groups under modern conditions: that the peoples live lives of poverty, deprived of subsistence, education, health, land and culture. At first sight, the focus of the Covenant appears highly ‘economistic’, focusing on the valued goods of contemporary life and measuring comparative deprivation. However, the emphasis on intangibles such as culture suggests that the Covenant is a more complex whole.
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. The Convention was adopted by the General Assembly on 21 December 1965 and entered into force on 4 January 1969. 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 force, denunciation, revision, reservations, etc. (Part III).