Seeking Justice in International Law: The Significance and Implications of the UN Declaration on the Rights of Indigenous Peoples 9781138613874, 9781138017962

Table of contents :
Cover......Page 1
Half Title......Page 2
Series Information......Page 3
Title Page......Page 6
Copyright Page......Page 7
Table of Contents......Page 8
Acknowledgements......Page 10
List of abbreviations......Page 11
Table of cases......Page 12
Table of statutes......Page 15
1 Introduction......Page 24
The content of the book......Page 30
Part I......Page 34
1. Introduction......Page 36
2. The legal content of the UNDRIP: an overview......Page 39
3. The right to self-determination......Page 44
3.1 External self-determination......Page 50
4. The right to own and control ancestral lands......Page 52
4.1 Realising land rights......Page 55
5. Participatory rights......Page 58
5.1 A constructive approach to FPIC......Page 60
6. Conclusions......Page 63
1. Introduction......Page 66
2. The role of soft law in the international legal system......Page 68
3. The Declaration’s potential to generate State compliance......Page 69
3.1 The drafting history......Page 70
3.2 The relationship between the Declaration and existing/emerging law......Page 75
3.3 The international institutional setting......Page 78
UN bodies and specialised agencies......Page 79
Human rights treaty bodies......Page 83
4. The role of regional and national courts......Page 86
5. Conclusions......Page 90
Part II......Page 92
1. Introduction......Page 94
2. Homeland minorities in international law......Page 95
2.1 The limited recognition of homeland minorities’ rights......Page 97
3. The human rights of the Roma......Page 101
3.1 Integrating the Roma......Page 104
4. The human rights of peasants......Page 106
4.1 The (uncertain) future of the peasant declaration......Page 110
5. Conclusions......Page 112
Part III......Page 114
1. Introduction......Page 116
2. Indigenous peoples as participants of international law: a social movement framework......Page 119
3. The global dimension of the indigenous movement......Page 121
4. The indigenous identity......Page 124
4.1 The political legitimacy of the indigenous movement......Page 128
5. Speaking with one voice......Page 134
6. Indigenous participation: a model for other groups seeking the recognition of their human rights .........Page 136
7. Conclusions......Page 140
1. Introduction......Page 142
2. The gravity and urgency of the situation of indigenous peoples......Page 143
2.1 International law and the injustices against indigenous peoples......Page 147
2.2 The Declaration and the gravity and urgency of the situation of indigenous peoples......Page 152
3. The environmental dimension of indigenous peoples’ rights......Page 155
3.1 Indigenous peoples and environmental sustainability......Page 156
3.2 Environmental sustainability and the Declaration......Page 161
4. Conclusions......Page 163
7 Conclusions......Page 165
Appendix......Page 171
Bibliography......Page 184
Index......Page 198

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Seeking Justice in International Law

Today human rights represent a primary concern of the international legal system. The international community’s commitment to the protection and promotion of human rights, however, does not always produce the results hoped for by the advocates of a more justice-oriented system of international law. Indeed, international law is often criticised for, inter alia, its enduring imperial character, incapacity to minimise inequalities and failure to take human suffering seriously. Against this background, the central question that this book aims to answer is whether the adoption of the 2007 United Nations Declaration on the Rights of Indigenous Peoples points to the existence of an international law that promises to provide valid responses to the demands for justice of disempowered and vulnerable groups. At one level, the book assesses whether international law has responded fairly and adequately to the human rights claims of indigenous peoples. At another level, it explores the relationship between this response and some distinctive features of the indigenous peoples’ struggle for justice, reflecting on the extent to which the latter might have influenced and shaped the former. The book draws important conclusions as to the reasons behind international law’s positive recognition of indigenous peoples’ rights, shedding some light on the potential and limits of international law as an instrument of justice. The book will be of great interest to students and scholars of public international law, human rights and social movements. Mauro Barelli is a Senior Lecturer at The City Law School, City University London.

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Routledge Research in International Law

Available International Law and the Third World Reshaping justice Edited by Richard Falk, Balakrishnan Rajagopal and Jacqueline Stevens International Legal Theory Essays and engagements, 1966–2006 Nicholas Onuf The Problem of Enforcement in International Law Countermeasures, the non-injured state and the idea of international community Elena Katselli Proukaki International Economic Actors and Human Rights Adam McBeth The Law of Consular Access A documentary guide John Quigley, William J. Aceves and S. Adele Shank State Accountability under International Law Holding states accountable for a breach of jus cogens norms Lisa Yarwood International Organizations and the Idea of Autonomy Institutional independence in the international legal order Edited by Richard Collins and Nigel D. White

Self-Determination in the Post-9/11 Era Elizabeth Chadwick Participants in the International Legal System Multiple perspectives on non-state actors in international law Edited by Jean d’Aspremont Sovereignty and Jurisdiction in the Airspace and Outer Space Legal criteria for spatial delimitation Gbenga Oduntan International Law in a Multipolar World Edited by Matthew Happold The Law on the Use of Force A feminist analysis Gina Heathcote The ICJ and the Evolution of International Law The enduring impact of the corfu channel case Edited by Karine Bannelier, Théodore Christakis and Sarah Heathcote UNHCR and International Refugee Law From treaties to innovation Corinne Lewis Asian Approaches to International Law and the Legacy of Colonialism The law of the sea, territorial disputes and international dispute settlement Edited by Jin-Hyun Paik, Seok-Woo Lee, Kevin Y. L. Tan

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The Right to Self-determination Under International Law “Selfistans,” secession, and the rule of the great powers Milena Sterio

Cultural Diversity in International Law The effectiveness of the UNESCO convention on the protection and promotion of the diversity of cultural expressions Edited by Lilian Richieri Hanania

Reforming the UN Security Council Membership The illusion of representativeness Sabine Hassler

Incitement in International Law Wibke K. Timmermann

Threats of Force International law and strategy Francis Grimal The Changing Role of Nationality in International Law Edited by Alessandra Annoni and Serena Forlati Criminal Responsibility for the Crime of Aggression Patrycja Grzebyk Regional Maintenance of Peace and Security under International Law The distorted mirrors Dace Winther International Law-making Essays in honour of Jan Klabbers Edited by Rain Liivoja and Jarna Petman Resolving Claims to Self-Determination Is there a role for the international court of justice? Andrew Coleman The Rise of Tamil Separatism in Sri Lanka From communalism to secession Gnanapala Welhengama and Nirmala Pillay The United Nations and Collective Security Gary Wilson Justice for Victims before the International Criminal Court Luke Moffett Public-Private Partnerships and Responsibility under International Law A global health perspective Lisa Clarke

The Cuban Embargo under International Law El bloqueo Nigel D. White Resisting United Nations Security Council Resolutions Sufyan Droubi The Changing Nature of Customary International Law Methods of interpreting the concept of custom in international criminal tribunals Noora Arajärvi The International Criminal Court in Search of its Purpose and Identity Edited by Triestino Mariniello Power and Law in International Society International relations as the sociology of international law Mark Klamberg The International Criminal Court and Global Social Control in Late Modernity International criminal justice in late modernity Nerida Chazal International Law and Boundary Disputes in Africa Gbenga Oduntan Means of Transportation and Registration of Nationality Transportation registered by international organizations Vincent P. Cogliati-Bantz Reciprocity in International Law Its impact and function Shahrad Nasrolahi Fard The Responsibility to Protect in International Law An emerging paradigm shift Susan Breau

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Legal Accountability and Britain’s Wars 2000–2015 Peter Rowe

Fragmentation vs the Constitutionalisation of International Law A practical inquiry Edited by Andrzej Jakubowski and Karolina Wierczyn´ska

Forthcoming titles in this series include Technology and the Law on the Use of Force New security challenges in the twenty first century Jackson Maogoto

International Criminal Law and Sexual Violence against Women The interpretation of gender in the contemporary international criminal trial Daniela Nadj

International Law and the Rights of those Displaced by Armed Conflict Elena Katselli Proukaki

Fighting and Victimhood in International Criminal Law Joanna Nicholson

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Seeking Justice in International Law

The significance and implications of the UN Declaration on the Rights of Indigenous Peoples Mauro Barelli

First published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017

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Routledge is an imprint of the Taylor & Francis Group, an informa business © 2016 Mauro Barelli The right of Mauro Barelli to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication Data Names: Barelli, Mauro, author. Title: Seeking justice in international law : the significance and implications of the UN Declaration on the Rights of Indigenous Peoples / Mauro Barelli. Description: Abingdon, Oxon; New York, NY : Routledge, 2016. | Series: Routledge research in international law | Based on author’s thesis (Doctoral – Cardiff University, 2011), issued under title: Promoting justice in international law? : an assessment of the accommodation of indigenous peoples’ rights. | Includes bibliographical references and index. Identifiers: LCCN 2015045011| ISBN 9781138017962 (hbk) | ISBN 9781315658810 (ebk) Subjects: LCSH: United Nations. General Assembly. Declaration on the Rights of Indigenous Peoples. | Indigenous peoples–Legal status, laws, etc. Classification: LCC K3247.B37 2016 | DDC 342.08/72–dc23 LC record available at http://lccn.loc.gov/2015045011 ISBN: 978-1-138-01796-2 (hbk) ISBN: 978-1-315-65881-0 (ebk) Typeset in Galliard by Out of House Publishing

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Contents

Acknowledgements List of abbreviations Table of cases Table of statutes 1 Introduction

ix x xi xiv 1

PART I

11

2 The legal content of the United Nations Declaration on the Rights of Indigenous Peoples

13

3 The legal status of the United Nations Declaration on the Rights of Indigenous Peoples

43

PART II

69

4 The United Nations Declaration on the Rights of Indigenous Peoples and the human rights struggles of other groups in international law

71

PART III

91

5 The political power of the global indigenous movement

93

6 Two distinguishing features of the human rights claims of indigenous peoples

119

7 Conclusions

142

Appendix: resolution 61/295 of the UN General Assembly Bibliography Index

148 161 175

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Acknowledgements

In the course of writing this monograph, which is based upon a doctoral thesis successfully defended at Cardiff University in 2011, I  have become indebted to many people. I would like to thank, in particular, Prof. Urfan Khaliq, who provided invaluable guidance at every stage of my PhD and assisted me throughout the gestation of this book. I am also grateful to Dr Alexandra Xanthaki for her helpful comments on the PhD thesis with a view to it being revised for publication. I further owe a special debt of gratitude to my colleague Dr Tawhida Ahmed, who provided detailed and insightful comments on each chapter of the book. I would also like to thank Dr Holly Ryan and Annabel Beales for commenting on earlier versions of particular chapters, and Michal Zajpt for his research assistance on Chapter 3. I further wish to thank Prof. Dwight Newman for inviting me, in September 2014, to present my (then) forthcoming book at the University of Saskatchewan Indigenous Rights Manuscript Workshop Series. I am very grateful to him and the many participants to the workshop for their precious feedback. I would also like to thank City University London for awarding me a research grant and The City Law School for granting me a study leave that allowed me to spend the 2013 fall at the Lauterpacht Centre for International Law, where part of this book was written. I shall also express my gratitude to my father and sister for helping me in many different ways to complete this project. A very special thanks is due to my wife Qing for her constant presence, support and patience, and my son Luca for reminding me, every single day, what really matters in life. Without them, I would not have been able to overcome the many difficulties encountered during this journey. The greatest thanks goes to my Mum for everything that she has done for me in her life. She would have been immensely happy (in fact happier than me) to witness the publication of this monograph. The book is dedicated to her. Mauro Barelli London, January 2016

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List of abbreviations

CERD Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights CRC Committee on the Rights of the Child ECOSOC Economic and Social Council EMRIP Expert Mechanism on the Rights of Indigenous Peoples ERTF European Roma and Travellers Forum EU European Union FAO Food and Agriculture Organization FPIC Free, Prior and Informed Consent HRC Human Rights Committee IACtHR Inter-American Court of Human Rights ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICJ International Court of Justice IFC International Finance Corporation ILO International Labour Organization NGOs Non-Governmental Organisations OAU Organization of African Unity OHCHR Office of the High Commissioner for Human Rights SRMI Special Rapporteur on Minority Issues UN United Nations UNDG United Nations Development Group UNDRIP United Nations Declaration on the Rights of Indigenous Peoples WGIP Working Group on Indigenous Populations WGDD Working Group on the Draft Declaration

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Table of cases

International Court of Justice Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p. 403  27, 29, 77 Gabcikovo-Nagymaros Project (Hungary v. Slovakia) Judgment, ICJ Reports 1997, p. 7  133 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands) Judgment, ICJ Reports 1969, p. 3  44

Permanent Court of International Justice Legal Status of Eastern Greenland (Denmark v. Norway) (1933) PCIJ Series A/B, No. 53  125, 127

African Commission on Human and Peoples’ Rights Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, African Commission on Human and Peoples’ Rights, 276/2003 (4 February 2010)  32, 39 Katangese Peoples’ Congress v. Zaire, African Commission on Human and Peoples’ Rights, Communication No. 75/92 (1995)  22, 30

European Court of Human Rights Cossey v. United Kingdom (1990) 13 EHRR 622  60 Handölsdalen Sami Village and Others v. Sweden (2010) ECHR 39013/04  64 Loizidou v. Turkey (1997) 23 EHRR 513  60 Tyrer v. United Kingdom (1978) 2 EHRR 1  60

xii  Table of cases

Inter-American Court of Human Rights Comunidad Indigena Yakye Axa v. Paraguay, Series C 125 (2005)  29, 33, 34, 38, 61, 103

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Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion, OC-18/03, Series A 18 (2003)  61 Kichwa Indigenous Peoples of Sarayaku v. Ecuador, Series C 245 (2012)  33, 37 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Series C 79 (2001)  2, 33, 34, 60, 131 Moiwana Community v. Suriname, Series C 124 (2005)  7, 33 The Right to Information on Consular Assistance in the Framework of Guarantees for Due Legal Process, Advisory Opinion, OC-16/99, Series A 16 (1999)  60, 61 Saramaka People v. Suriname, (Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs), Series C 185 (2008)  39 Saramaka People v. Suriname, Series C 172 (2007)  7, 33, 63, 103, 121 Sawhoyamaxa Indigenous Community v. Paraguay, Series C 146 (2006)  33, 34, 103

National Courts Canada Delgamuukw v. British Columbia [1977] 3 SCR 1010  40 Haida Nation v. British Columbia (Minister of Forests) [2004] 3 SCR 511  40 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [2005] 3 SCR 388  40 Mitchell v. M.N.R. [2001] 1 SCR 911  66 Reference re Secession of Quebec [1998] 1 SCR 217  22, 29 Tsilhqot’in Nation v. British Columbia [2014] SCC 44  40, 66, 67 Constitutional Court of Bolivia Case 2003/2010-R of 25 October 2010  39, 65 Constitutional Court of Colombia Case T-129 of 3 March 2011  40, 65 Case T-769/09 of 29 October 2009  40

Table of cases xiii Supreme Court of Belize Claims No. 171 and 172 of 2007, Decision of 18 October 2007  66 Claim No. 394 of 2013, Decision of 3 April 2014  40, 66

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Supreme Court of New Zealand New Zealand Mãori Council et al v. Attorney General et al SC 98/2012, [2013] NZSC 6 (27 February 2013)  66

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Table of statutes

Treaties and Other Instruments African Charter of Human and Peoples’ Rights (27 June 1981) OAU Doc. CAB/LEG/67/3 rev. 5, 21  18, 64 Charter of the United Nations, 1 UNTS XVI (24 October 1945)  17, 25, 27, 28, 86, 148–150, 160 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, Europe T.S. No. 5, 213 UNTS 221  60, 79 Convention on Biological Diversity, 31 ILM 818 (1992)  53, 111, 133, 136, 137 Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948) United Nations, Treaty Series, vol. 78, p. 277  74, 123 Declaration of the Principles of International Cultural Cooperation, adopted on 4 November 1966 by the General Conference of UNESCO  131 Declaration of San Jose, adopted on 11 December 1981 by the Conference of Specialists on Ethnocide and Ethnodevelopment in Latin America, convened by UNESCO and the Latina American School of Social Science, UN Doc. E/CN.4/Sub.2/1982/2/Add.1 (Annex VI)  130 Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly Resolution 1514 (XV) of 14 December 1960  21, 128 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UN General Assembly Resolution 2625 (XXV) of 24 October 1970  27, 28 Declaration on the Rights of Indigenous Peoples, UN General Assembly Resolution 61/295 of 13 September 2007   148 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res. 47/135, annex, 47 UN GAOR Supp. (No. 49) at 210, UN Doc. A/47/49 (1993)  35, 73–75, 93, 144 Draft Declaration on the Rights of Indigenous Peoples, adopted 29 June 2006, Human Rights Council Resolution 2006/2, UN Doc. A/HRC/1/2  48

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Table of statutes xv Draft Declaration on the Rights of Indigenous Peoples, as adopted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1994/2/Add.1 (20 April 1994)  24, 30, 36, 48–50, 63, 66, 130 Draft UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, Advanced Version (27 January 2015)  72, 86–90, 115, 116, 144 Durban Declaration and Programme of Action (2001), adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, South Africa, UN Doc. A/CONF.189/12  50 Framework Convention for the Protection of National Minorities, Council of Europe (1 February 1995) ETS 157  35, 75, 79 Inter-American Charter of Social Guarantees, adopted by the Ninth International Conference of American States, Final Act, Resolution XXXIX, 29 (1948)  122 International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195 (7 March 1966)  22, 32, 54, 55, 61, 79 International Covenant on Civil and Political Rights, 999 UNTS 171 (16 December 1966)  21, 22, 54, 74, 75, 94, 149 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (16 December 1966)  21, 22, 54, 74, 75, 94, 149 International Labour Organization Convention No. 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (26 June 1957) 328 UNTS 247  82, 83, 124 International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (27 June 1989) 1650 UNTS 383  23, 53, 83, 124 Johannesburg Declaration on Sustainable Development, Adopted at the 17th plenary meeting of the World Summit on Sustainable Development (4 September 2002)  133, 136 Marrakech Agreement Establishing the World Trade Organization (15 April 1994) UNTS Vol. 1867, 1-31874  133 Organization of American States, American Convention on Human Rights, Pact of San Jose, Costa Rica (22 November 1969)  33, 64 Principles which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for under Article 73(e) of the Charter, UN General Assembly Resolution 1541 (XV) of 15 December 1960  21 Rio Declaration on Environment and Development, 31 ILM 874 (1992)  53, 132, 133, 136 Statute of the International Court of Justice, 15 UNCIO 355 (26 June 1945)  43, 44

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xvi  Table of statutes Universal Declaration of Human Rights, UN General Assembly Resolution 217 of 10 December 1948  17, 86, 94, 150 Vienna Convention on the Law of Treaties (23 May 1969), United Nations, Treaty Series, vol. 1155, p. 331  28 Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, UN GA, 25 June 1993, A/CONF.157/2325 June 1993  28, 50, 149 World Summit Outcome, UN General Assembly Resolution 60/1 of 16 September 2005  50, 137

United Nations Human Rights Treaty Bodies Committee on Economic, Social and Cultural Rights General Comment No. 21: Right of everyone to take part in cultural life E/C.12/GC/21 (21 December 2009)  32, 39, 62 Committee on the Elimination of All Forms of Racial Discrimination General Recommendation No. 23: Indigenous Peoples, UN Doc. A/52/18, Annex V (18 August 1997)  32 Australia, CERD/C/304/Add.101 (19 April 2000)  32 Costa Rica, CERD/C/60/CO/3 (20 March 2002)  32 Fiji, CERD/C/FJI/CO/17 (16 May 2008)  62 Finland, CERD/C/FIN/CO/20–22 (23 October 2012)  62 Japan, CERD/C/JPN/CO/3–6 (6 April 2010)  61 Mexico, UN Doc. A/50/18 (22 September 1995)  32 Russian Federation, CERD/C/RUS/CO/20–22 (17 April 2013)  62 Sri Lanka, UN Doc. A/56/18 (14 September 2001)  32 Sweden, CERD/C/64/CO/8 (10 May 2004)  32 The United States of America, CERD/C/USA/CO/6 (February 2008)  61 Committee on the Rights of the Child General Comment No. 11: Indigenous children and their rights under the Convention (12 February 2009)  62 Human Rights Committee General Comment No. 12: The right to self-determination (Art. 1)  22 Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993 CCPR/C/70/D/547/1993  26

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Table of statutes xvii Gillot et al v. France, Communication No. 932/2000, CCPR/C/75/ D/932/2000  26 I. Länsman et al. v. Finland, Communication No. 511/1992, CCPR/C/52/ D/511/1992  39 J. Diergaardt v. Namibia, Communication No. 760/1997, CCPR/C/69/ D/760/1997  26 Poma Poma v. Peru, Communication No. 1457/2006, CCPR/C/95/D/ 1457/2006  39 Australia, A/55/40 (24 July 2000)  26 Brazil, A/51/40 (24 July 1996)  32 Canada, CCPR/C/79/Add.105 (7 April 1999)  26 Colombia, CCPR/CO/80/COL (26 May 2004)  32 Finland, CCPR/CO/82/FIN (2 December 2004)  32 Mexico, CCPR/C/79/Add.109 (27 July 1999)  26, 32 Norway, CCPR/C/79/Add.112 (1 November 1999)  26 Paraguay, CCPR/C/PRY/CO/2 (24 April 2006)  32 The Philippines, CCPR/CO/79/PHL (1 December 2003)  32 Sweden, CCPR/CO/74/SWE (24 April 2002)  26

UN Special Rapporteurs, Working Groups and Mechanisms United Nations Special Rapporteur on the Rights of Indigenous Peoples Annual Report, UN Doc. E/CN.4/2002/97 (4 February 2002)  113 Annual Report, UN Doc. A/HRC/4/32/Add.4 (26 February 2007)  57 Annual Report, UN Doc. A/66/288 (10 August 2011)  38 United Nations Working Group on Indigenous Populations Report of the WGIP on its Third Session, UN Doc. E/CN.4/ Sub.2/1984/20  99 Report of the WGIP on its Fourth Session, UN Doc. E/CN.4/ Sub.2/1985/22  100 United Nations Working Group on the Draft Declaration on the Rights of Indigenous Peoples Report of the WGDD on its First Session, UN Doc. E/ CN.4/1996/84  23, 24 Report of the WGDD on its Second Session, UN Doc. E/ CN.4/1997/102  16, 30, 37 Report of the WGDD on its Fourth Session, UN Doc. E/ CN.4/1999/82  16

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xviii  Table of statutes Report of the WGDD on its Fifth Session, UN Doc. E/ CN.4/2000/84  36 Report of the WGDD on its Sixth Session, UN Doc. E/ CN.4/2001/85  23, 24 Report of the WGDD on its Seventh Session, UN Doc. E/ CN.4/2002/98  17 Report of the WGDD on its Eighth Session, UN Doc. E/ CN.4/2003/92  24, 26 Report of the WGDD on its Eleventh Session, UN Doc. E/ CN.4/2006/79  48 Expert Mechanism on the Rights of Indigenous Peoples Advice No. 1 (2009) on the Indigenous Peoples’ Right to Education, UN Doc. A/HRC/12/33  58 Advice No. 2 (2011) on Indigenous Peoples and the Right to Participation in Decision-making, UN Doc. A/HRC/18/42  58 Advice No. 3 (2012) on Indigenous Peoples’ Languages and Cultures, UN Doc. A/HRC/21/53  58 Advice No. 4 (2012) on Indigenous Peoples and the Right to Participate in Decision-making, with a Focus on Extractive Industries, UN Doc. A/ HRC/21/55  58 Report of the EMRIP on its First Session, UN Doc. A/HRC/10/56  57 United Nations Reports, Studies and Working Papers Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/ AC.5/2005/2 (4 April 2005)  73 Comprehensive Study of the Human Rights Situation of Roma Worldwide, Report of the Special Rapporteur on Minority Issues, Rita Izsák, UN Doc. A/HRC/29/24 (11 May 2015)  78, 79, 82 Explanatory Note on the Collective Rights of Indigenous Peoples, Proposal by Indigenous Representatives, submitted during the Seventh Session of the Working Group on the Draft Declaration, 28 January–8 February 2002, UN Doc. E/CN.4/2002/98 (6 March 2002) Annex II  18 Final Study of the Human Rights Council Advisory Committee on the Advancement of the Rights of Peasants and Other People Working in Rural Areas, UN Doc. A/HRC/19/75 (24 February 2012)  84–86 Human Rights and the Environment, Preliminary Report Prepared by Mrs Fatma Zhora Ksentini, Special Rapporteur, UN Doc. E/CN.4/ Sub.2/1991/8 (2 August 1991)  29

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Table of statutes xix The Human Rights Problems and Protections of the Roma, Working Paper prepared by Mr Y.K.J. Yeung Sik Yuen pursuant to the Sub-Commission decision 1999/109, UN Doc. E/CN.4/Sub.2/2000/28 (23 June 2000)  78 The Implementation of the Right to Self-determination as a Contribution to Conflict Prevention, Report of the International Conference of Experts held in Barcelona (21–27 November 1998), organised by the UNESCO Division of Human Rights Democracy and Peace and the UNESCO Centre of Catalonia  131 Indigenous Peoples and Boarding Schools: a Comparative Study, Note by the Secretariat, UN Doc. E/C.19/2010/11 (1 February 2010)  123, 124 Indigenous Peoples: Development with Culture and Identity: Articles 3 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples, Report of the International Expert Group Meeting, UN Doc. E/C.19/2010/14 (5 February 2010)  104, 134 Indigenous Peoples and their Relationship to Land, Final Working Paper prepared by the Special Rapporteur, Mrs Erica-Irene A. Daes, UN Doc. E/ CN.4/Sub.2/2000/25 (30 June 2000)  29, 103 Note by the Chairperson-Rapporteur of the Working Group on Indigenous Populations on criteria which might be applied when considering the concept of indigenous peoples, Sub-Commission on Prevention of Discrimination and Protection of Minorities – Working Group on Indigenous Populations, UN Doc. E/CN.4/Sub.2/AC.4/1995/3 (21 June 1995)  6 Our Common Future, Report of the World Commission on Environment and Development, Annex to UN Doc. A/42/427 (4 August 1987)  121 Outcome Document of the High-level Plenary Meeting of the General Assembly known as the World Conference on Indigenous Peoples, General Assembly Resolution 69/2 (25 September 2014)  50 Peasant Farmers and the Right to Food: A History of Discrimination and Exploitation, Prepared by Mr Jean Ziegler, Member of the Human Rights Council Advisory Committee, UN Doc. A/HRC/AC/3/CRP.5 (4 August 2009)  84 Preliminary Study of the Human Rights Council Advisory Committee on Discrimination in the Context of the Right to Food, UN Doc. A/ HRC/13/32 (22 February 2010)  85, 116 Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, A/HRC/10/44 (14 January 2009)  61 Promotion and Protection of Human Rights Science and Environment, Report of the Joint OHCHR–UNEP Seminar on Human Rights and the Environment, UN Doc. E/CN.4/2002/WP.7 (22 March 2002), Annex II

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xx  Table of statutes Protection of Roma, Human Rights Council Resolution 26/4, UN Doc. A/HRC/26/L.11 (20 June 2014)  137 Report of the Independent Expert on Minority Issues, Gay McDougall, ‘The Role of Minority Rights Protection in Promoting Stability and Conflict Prevention’, UN Doc. A/HRC/16/45 (16 December 2010)  74 Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples (New York, 17–19 January 2005), UN Doc. E/C.19/2005/3  35 Report of the International Workshop on the draft United Nations Declaration on the Rights of Indigenous Peoples, Patzcuaro, Michoacán, Mexico, 26–30 September 2005, UN Doc. E/CN.4/2005/WG.15/CRP.1  25 Report of the Open-ended Intergovernmental Working Group on a draft United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas on its First Session, UN Doc. A/HRC/26/48 (11 March 2014)  85 Report of the Open-ended Intergovernmental Working Group on a draft United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas on its Second Session, UN Doc. A/HRC/30/55 (22 July 2015)  85 Report of the Special Rapporteur on Minority Issues, ‘Preventing and Addressing Violence and Atrocities against Minorities’, UN Doc. A/69/266 (6 August 2014)  74 Report of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/4/77 (6 March 2007)  62 Report of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/9/11 (8 September 2008)  62 Report of the United Nations High Commissioner for Human Rights Reports, UN Doc. A/HRC/10/51 (14 January 2009)  62 Report of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/15/134 (8 July 2010)  62 Report of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/24/26 (1 July 2013)  63 Report of the Working Group on Minorities on its First Session, UN Doc. E/CN.4/Sub.2/1996/2 (28 November 1995)  78 Strengthening of the United Nations: an Agenda for Further Change, Report of the Secretary-General, UN Doc. A/57/387 (9 September 2002)  107 Study of the Problem of Discrimination Against Indigenous Populations, Final Report submitted by the Special Rapporteur, Mr José Martínez Cobo, Conclusions, Proposals and Recommendations, UN. Doc. E/CN.4 Sub.2/1983/21/Add.8 (28 June 1983)  6, 121

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Table of statutes xxi Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/ Sub.2/384/Rev.1 (1979)  72 Study on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations, Final Report by Miguel Alfonso Martinez, Special Rapporteur, E/CN.4/Sub.2/1999/20 (22 June 1999)  128 We the Peoples: Civil Society, the United Nations and Global Governance, Report of the Panel of Eminent Persons on United NationsCivil Society Relations, UN Doc. A/58/817 (11 June 2004)  96, 105, 108 What is a Peasant? What are Peasantries?, Briefing Paper on Issues of Definition, Prepared for the First Session of the Intergovernmental Working Group on a United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas, Geneva (15–19 July 2013)  71, 116 Working Paper by the Chairperson-Rapporteur on the concept of ‘indigenous people’, Sub-Commission on Prevention of Discrimination and Protection of MinoritiesWorking Group on Indigenous Populations, UN Doc. E/CN.4/Sub.2/AC.4/1996/2 (10 June 1996)  6, 7 Working Paper on ‘Globalization and the Economic, Social and Cultural Rights of Indigenous Populations’, submitted by Mr El Hadji Guissè at the Twenty-First Session of the WGIP, UN Doc. E/CN.4/Sub.2/ AC.4/2003/14 (15 June 2003)  137

Regional Documents Africa Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples (May 2007)  54 Decision on the UN Declaration on the Rights of Indigenous Peoples, African Union, Assembly/AU/Dec.141 (VII) (January 2007)  48 Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted by the African Commission on Human and Peoples’ Rights by Resolution 65 (XXXIV) 03 (20 November 2003)  7, 105, 122 The Americas Report on the Situation of Human Rights in Ecuador, Inter-American Commission on Human Rights, OAS/Ser.L/V/II.96 Doc. 10 rev. 1 (24 April 1997) Chapter 9  121

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xxii  Table of statutes

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Resolution on Special Protection for Indigenous Populations – Action to Combat Racism and Racial Discrimination, Inter-American Commission on Human Rights, OEA/Ser.L/V/II/.29 Doc. 41 rev. 2 (13 March 1973)  128 Europe Ad Hoc Committee of Experts on Roma Issues (CAHROM), 6th CAHROM Meeting, 28–31 October 2013  81 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: An EU Framework for National Roma Integration Strategies up to 2020, Brussels, 5 April 2011, COM(2011) 173 Final  81 Council Resolution of 30 November 1998: Indigenous Peoples within the Framework of the Development Cooperation of the Community and the Member States  138

Indigenous Peoples’, Roma’ and Peasants’ Declarations and Reports Anchorage Declaration (Indigenous Peoples’ Global Summit on Climate Change 2009)  134 Annual Report on European Roma and Travellers Forum Activities covering the period from 30th September 2008 to 30th October 2009  80 Annual Report on European Roma and Travellers Forum Activities covering the period from 1st November 2009 to 30th September 2010  80 Charter on the Rights of the Roma, European Roma and Travellers Forum (2010)  80, 81 Declaration of the Rights of Peasants – Women and Men, La Via Campesina (2008)  85, 115 Indigenous Peoples’ International Declaration on Self-Determination and Sustainable Development, Rio de Janeiro (2012)  134 Indigenous Peoples’ Plan of Implementation on Sustainable Development (International Indigenous Peoples Summit on Sustainable Development 2002)  134 Indigenous Peoples’ Seattle Declaration (1999)  134 International Cancun Declaration of Indigenous Peoples (2003)  134 People’s Agreement (World Peoples’ Conference on Climate Change and the Rights of Mother Earth 2010)  134 Report of the Global Indigenous Peoples’ Caucus Steering Committee of 31 August 2007  42

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1 Introduction

Throughout their history, indigenous peoples have experienced various forms of injustices, including colonisation, dispossession of lands and resources, oppression, and discrimination.1 As a result of various efforts to undermine and disrupt their societies, they have found themselves in a constant state of vulnerability that has forced them to continuously struggle for their own survival. This centuries-old struggle has taken different forms and directions over time, according to the relevant contexts and circumstances. A distinguishing feature of indigenous peoples’ contemporary efforts to protect their lives and destinies has been their strategic use of international law. Unsatisfied with the responses provided by domestic systems, in the mid-1970s the world’s indigenous peoples began to mobilise in order to claim the re-affirmation of their human rights and dignity at the international level.2 They skilfully seized the opportunities provided by an emerging international human rights culture demanding enhanced political power, control of their ancestral lands, protection for their cultures, the end of all forms of discrimination and assimilation, and a general improvement of their very poor socio-economic conditions.3 On 13 September 2007, after decades of lobbying and diplomacy, they could finally celebrate the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration), a historic instrument which has been emphatically welcomed as a ‘triumph for justice and human

For an account, see K. Coates, A Global History of Indigenous Peoples: Struggle and Survival (Palgrave Macmillan 2004). 2 This strategy is typically employed by domestic actors who are unable to accomplish human rights change at the national level. Accordingly, they bypass their respective governments in an attempt to activate a transnational network and influence other States and international organisations which will then exert pressure on the relevant governments. See M. Keck and K. Sikkink, Activists Beyond Borders:  Advocacy Networks in International Politics (Cornell University Press 1998) pp. 10–14. 3 Poverty indicators typically show that indigenous peoples are among the world’s poorest, most socially marginalised and dispossessed groups. See, for example, G. Hall and H. Patrinos (eds), Indigenous Peoples, Poverty, and Development (Cambridge University Press 2014). 1

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2 Introduction dignity’.4 Inspired by the suffering and teardrops of generations of indigenous people,5 the UNDRIP recognises, first and foremost, the right of indigenous peoples to have rights,6 reversing a tradition of discrimination and oppression in international law. It does so with a view to re-empowering indigenous peoples and re-building their relationships with States on the basis of respect for human rights, non-discrimination, cooperation and good faith.7 These ambitious goals are fully reflected in the UNDRIP’s bold provisions. Breaking new ground in the area of ethno-cultural group rights,8 the UNDRIP affirms far-reaching political rights such as the right to self-determination and principles such as the principle of free, prior and informed consent (FPIC) that challenge State sovereignty, that is to say, the very concept that defines the structure of international law, ‘at a deep level’.9 Equally importantly, the UNDRIP recognises extensive cultural rights to indigenous peoples which, among other things, have significant economic repercussions in light of their juxtaposition with the right to own and control ancestral lands.10

Statement of the (then) UN High Commissioner for Human Rights, Louise Arbour, on the occasion of the adoption of the UNDRIP, at www.ohchr.org/EN/NewsEvents/Pages/ DisplayNews.aspx?NewsID=6097&LangID=E (accessed 20 September 2015). 5 In Henderson’s words, ‘indigenous peoples have suffered and sacrificed for the Declaration and other UN achievements. We have endured forced assimilation and unjust relationship with the colonizers and the institutions. We have been scorned, persecuted, and jailed. As an indigenous elder commented about the Declaration, “The text is made up of so many teardrops of the horrible times” ’. James (Sa’ke’j) Youngblood Henderson, Indigenous Diplomacy and the Rights of Peoples: Achieving UN Recognition (Purich Publishing 2008) p. 11. 6 For a broader discussion of the right to have rights in the context of the international protection of human rights, see A. Kesby, The Right to Have Rights:  Citizenship, Humanity, and International Law (Oxford University Press 2012), which, in turn, draws from Hannah Arendt’s concept of ‘the right to have rights’. 7 According to a factsheet produced by the UN Permanent Forum on Indigenous Issues, there are more than 370 million indigenous people spread across 70 countries worldwide. ‘Indigenous Peoples, Indigenous Voices, United Nations Permanent Forum on Indigenous Issues’, at www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf (accessed 20 September 2015). 8 The term ethno-cultural groups is used in this book to refer to non-dominant groups defined by ethnicity, language and/or religion. For a broader discussion, see G. Pentassuglia, ‘Ethnocultural Diversity and Human Rights: Legal Categories, Claims, and the Hybridity of Group Protection’ (2014) 6 Yearbook of Polar Law Online pp. 250–317. 9 A. Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (Cambridge University Press 2007) p. 102. 10 In the words of the Inter-American Court of Human Rights (IACtHR), ‘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’. Mayagna (Sumo) Awas Tingni Community v. Nicaragua, IACtHR (Ser. C) No. 79 (2001) para. 149. The relationship between indigenous cultural rights and land rights will be further discussed in Chapter 2. 4

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Introduction 3 From a human perspective, the fact that a relatively powerless group of people have struggled for and obtained the international recognition of their rights in the face of serious challenges and threats warrants special respect and admiration.11 For the purposes of this study, however, the story of indigenous peoples acquires additional significance when examined from the perspective of international law. Today human rights represent a primary concern of the international legal system.12 In the words of Cancado Trindade, a judge at the International Court of Justice (ICJ), ‘the centrality of human rights corresponds to a new ethos of our time’.13 The international community’s commitment to the protection and promotion of human rights, however, does not always produce the results hoped for by the advocates of a more justice-oriented system of international law. Indeed, international law has often been criticised for its enduring imperial character,14 its inherent incapacity to minimise inequalities15 and even its inability to effectively influence the course of international affairs.16 One particular branch of international law, that is, international human rights law, has been similarly singled out for its failure to reflect non-Western conceptions of human dignity17 and take human

I am not oblivious to the fact that, despite my academic engagement with this topic, I ultimately remain, in the words of Nayar, ‘far removed from the existential realities of [indigenous people’s] suffering’. I. Nayar, ‘Orders of Inhumanity’ in R. Falk, L. Ruiz and R. Welker (eds), Reframing the International: Law, Culture, Politics (Routledge 2002) pp. 107–135, at p.126. In this regard, I have written this book with a great sense of respect and humbleness, trying as much as possible to draw from public statements, declarations, accounts, reflections and stories of the real protagonists of this international struggle, that is, indigenous people. 12 The scale and scope of the international human rights system has constantly developed since the adoption of the 1948 Universal Declaration of Human Rights through the creation of new human rights instruments aimed at covering new areas of concern and offering protection to new categories of people. This process reached its peak in the 1990s, which have been described as ‘the golden age of human rights’. R. Falk, Achieving Human Rights (Routledge 2009) p. 5. In those years, the UN showed unprecedented commitment to the promotion and protection of human rights throughout the world, ‘elevat[ing] human rights related issues to a central place on the agenda of contemporary international relations’. A. Cancado Trindade, International Law for Humankind: Towards a New Jus Gentium (2nd revised edn, Martinus Nijhoff Publishers 2013) p. 622. According to some, the rise of human rights has also triggered a broader process of ‘humanisation of international law’ by which the development of key areas of international law such as economic, environmental and criminal law has been influenced by human rights ideals and principles. See T. Meron, The Humanization of International Law (Brill 2006). See also D. Forsythe, Human Rights in International Relations (3rd edn, Cambridge University Press 2012). 13 Cancado Trindade, International Law for Humankind, supra note 12, p. 622. 14 See, for example, A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2007). 15 See, for example, C. Mieville, Between Equal Rights: A Marxist Theory of International Law (Brill 2005). 16 See, for example, J. Goldsmith and E. Posner, The Limits of International Law (Oxford University Press 2005). 17 See, for example, M. Mutua, Human Rights: A Political and Cultural Critique (University of Pennsylvania Press 2002). 11

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4 Introduction suffering seriously.18 Against this background, the central question that this book aims to answer is whether the emergence of a remarkably progressive instrument such as the UNDRIP, which is called to remedy particularly serious and historically contextualised forms of injustice, points to the existence of an international law that promises to provide valid responses to the demands for justice of disempowered and vulnerable groups.19 Obviously, this book cannot and does not aim to provide a definitive answer to the complex question of international law and justice.20 Instead, its aim is to contribute to a better understanding of the transformative potential of international law by examining the outcome and dynamics of one particular struggle for justice, namely that of indigenous peoples. In order to do so, the first part of the book will assess whether the UNDRIP has responded fairly and adequately to the claims and concerns of indigenous peoples; the second part of the book, instead, will discuss whether other groups similar to indigenous peoples have been able to mirror the latter’s achievements in international law; finally, the third part of the book will explore the dynamics, factors and circumstances that contributed to the establishment of a unique instrument such as the UNDRIP. Before providing an overview of the content of the book, two preliminary clarifications are warranted. First, the book does not aim to engage theoretically with the question of justice in international law. Instead, and in line with the protagonists’ own narratives, it understands the international struggle of indigenous peoples (and indeed those of other similar groups) for their human rights as a struggle for justice. Accordingly, the book can be said to pragmatically subscribe to a human rights-based concept of justice. In this sense, justice for indigenous peoples will be ultimately achieved when these groups will be able to overcome the ongoing negative effects of historical forms of dispossession and oppression, put an end to the denial of their basic human rights and

See, among others, U. Baxi, ‘Voices of Suffering and the Future of Human Rights’ (1998) 8 Transnational Law and Contemporary Problems pp. 125–169; and W. Felice, Taking Suffering Seriously: The Importance of Collective Human Rights (State University of New York Press 1996). 19 While relevant to disempowered and vulnerable groups generally, the discussions in this book will focus mainly on ethno-cultural groups, such as indigenous peoples, whose (collective) human rights claims can be said to challenge the sovereign power and/or cultural structures of the affected States. 20 Works that have reflected on various aspects of this question include, among others, R. Falk, Human Rights Horizons:  The Pursuit of Justice in a Globalizing World (Routledge 2000); T. Pogge, World Poverty and Human Rights (Blackwell 2001); B. Rajagopal, International Law from Below:  Development, Social Movements and Third World Resistance (Cambridge University Press 2003); M. Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law (Oxford University Press 2007); R. Falk, Achieving Human Rights (Routledge 2009); Cancado Trindade, International Law for Humankind, supra note 12; R. Falk, B. Rajagopal and J. Stevens (eds), International Law and the Third World: Reshaping Justice (Routledge 2008). For more theoretical works, see, among others, T. Franck, Fairness in International Institutions and International Law (Oxford University Press 1995); J. Rawls, The Law of Peoples with ‘The Idea of Public Reason Revisited’ (Harvard 18

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Introduction 5 re-gain control of their own destinies. Since the Declaration lies at the centre of this process of re-empowerment, its implementation is key to turning those aspirations into living realities. At the time of the writing of this book, the implementation process remains slow and generally unsatisfactory. To say that, however, is not to say that the Declaration has proved or will prove unsuccessful. A significant degree of transformation is required in the legal structures, policies and attitudes of many States in order to adhere to the UNDRIP’s progressive precepts and principles.21 Indeed, the ambitious programme of justice that lies behind a visionary instrument such as the Declaration may take generations rather than years to complete.22 Practical and difficult arrangements will need to be worked out by both indigenous peoples and States. This will not be an easy and straightforward process.23 However, this book proceeds from the assumption that international law currently provides indigenous peoples with legal standards and requirements that States can no longer ignore,24 and that, crucially, a supportive international framework for the progressive realisation of these standards and requirements has clearly developed, setting the ideal conditions for positive political and judicial developments at the domestic level. Second, the meaning of the term ‘indigenous peoples’ needs some clarification.25 In the absence of a universally agreed definition, the commonly

University Press 2002); and A. Buchanan, Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (Oxford University Press 2004). 21 E. Daes, ‘International Day of the World’s Indigenous People’ Justice as Healing (1995). 22 Ibid. On the theme of ‘visions and visionaries’ in the context of international human rights, see P. Lauren, The Evolution of International Human Rights:  Visions Seen (University of Pennsylvania Press 2011). 23 According to Henderson, the Declaration ‘witnesses that the old colonial ideology can be displaced by effort, but the same effort is needed to implement and actualize the new vision of human rights and a just society. This may leave many Indigenous peoples frustrated, but they have the spirit within them as self-determining people to make the transformation happen. Human consciousness and belief cannot be transformed overnight. It will take new forms of political mobilization and discussion based on the intellectual and spiritual dimension of politics to institute a new system of living based on constitutional and international human rights’. Henderson, Indigenous Diplomacy and the Rights of Peoples, supra note 5, pp. 102 and 103. 24 See also A. Eide, ‘From Prevention of Discrimination to Autonomy and Self-Determination: The Start of the WGIP, the Achievements Gained and Future Challenges’ in R. Dunbar-Ortiz, D. Sambo Dorough, G. Alfredsson, L. Swepston and P. Wille (eds), Indigenous Peoples’ Rights in International Law: Emergence and Application (IWGIA 2015) pp. 98–121, at p.120. 25 There is a vast literature on the subject. See, among others, P. Thornberry, Indigenous Peoples and Human Rights (Manchester University Press 2002) pp. 33–60; D. Sanders, ‘Indigenous Peoples: Issues of Definition’ (1999) 8 International Journal of Cultural Property pp. 4–13; J. Corntassel, ‘Who is Indigenous?’ (2003) 9 Nationalism and Ethnic Politics pp. 75–100; B. Kingsbury, ‘ “Indigenous Peoples” in International Law:  A  Constructivist Approach to the Asian Controversy’ (1998) 92 American Journal of International Law pp. 414–457; G. Alfredsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples:  Definitions of Terms as a Matter of International Law’ in N. Ghanea and A. Xanthaki (eds), Minorities, Peoples and Self-Determination (Martinus Nijhoff Publishers 2005) pp. 163–172; F. Lenzerini, ‘The Trail of Broken Dreams: The Status of Indigenous Peoples in International Law’ in F.

6 Introduction

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accepted understanding, or working definition, of ‘indigenous peoples’ in international law26 is the one provided by Martinez Cobo in his influential Study of the Problem of Discrimination against Indigenous Populations. According to his working definition,27 indigenous peoples are those: Which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.28 One merit of Cobo’s definition is that it seeks to promote an inclusive and functional understanding of the term ‘indigenous peoples’, notably one that is not centred on ideas of historical precedence and colonial subjugation. In particular, the inclusion of the term ‘pre-invasion’ reflects an attempt to extend the definition to cases arising outside a traditional colonial context. That said, the term ‘pre-invasion’ must be interpreted in a flexible manner in order for the definition to be able to encompass those African and Asian groups that did not experience particular forms of invasion, but, instead, were ‘simply’ oppressed by other (native) neighbouring communities.29 Crucially, the practice of Lenzerini (ed.), Reparations for Indigenous Peoples: International & Comparative Perspectives (Oxford University Press 2008) pp. 73–116, at pp. 75–77. On the issue of definition, see also Note by the Chairperson-Rapporteur of the Working Group on Indigenous Populations, Mrs Erica-Irene A.  Daes, on Criteria which might be applied when considering the concept of indigenous peoples, UN Doc. E/CN.4/Sub.2/AC.4/1995/3 (21 June 1995); and Working Paper by the Chairperson-Rapporteur, Mrs Erica-Irene A. Daes, on the Concept of ‘Indigenous People’, UN Doc. E/CN.4/Sub.2/AC.4/1996/2 (10 June 1996). 26 In accordance with the demands of indigenous peoples, the Declaration did not ultimately include a definition of the term. Contrary to indigenous peoples, however, a number of States demanded the inclusion of a definition. Some Western States, for example, were concerned that other sub-national groups living within their borders could claim the strong provisions enshrined in the Declaration to validate, inter alia, their secessionist claims. Some Asian and African States instead sought to include a restrictive definition of indigenous peoples based on the idea of prior occupancy in order to deny that any such people lived within their territories. The fact that none of these requests was ultimately embraced has been typically described as a victory of indigenous peoples. 27 As explained by Robinson, working definitions lack legal status and aim to remove ambiguities over a specific term so that ‘we are talking about the same thing when we use the same word’: R. Robinson, Definition (Oxford University Press 1950) p. 66. 28 Study of the Problem of Discrimination against Indigenous Populations, Final Report submitted by the Special Rapporteur, Mr José Martínez Cobo, Conclusions, Proposals and Recommendations, UN Doc. E/CN.4/Sub.2/1983/21/Add.8 (28 June 1983) para. 379. 29 Moreover, indigenous peoples should be seen as groups ‘which are native to their own specific ancestral territories within the borders of the existing State’ rather than the region in which their State is actually located. See S. Wiessner, ‘Rights and Status of Indigenous

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Introduction 7 regional30 and international31 human rights bodies supports such a dynamic interpretation. It follows that, provided that they display additional distinguishing features as listed in Cobo’s definition, groups with a historical and spiritual connection with a specific territory may well be regarded as ‘indigenous’ for the purpose of international law without necessarily being the ‘first inhabitants’ of that territory or having experienced particular forms of invasion or colonisation. As a result, this understanding of ‘indigenous peoples’ is broad enough to encompass a variety of groups that may share to a greater or lesser degree the features listed above, including tribal groups and hunter-gatherer communities. This dynamic approach is certainly not without its complications. As will be highlighted in Chapter 5, doubts have been cast on the long-term sustainability of indigenous peoples’ rights as a sui generis category of human rights in the absence of a relatively clear definition of ‘indigenous peoples’. In spite of these challenges, Cobo’s definition aptly reflects the understanding of indigenous peoples that has come to underpin the international regime of indigenous rights and, accordingly, will also inform the discussions of this book.

The content of the book This book is divided into three parts. Concerned with the legal content and status of the UNDRIP, the first part of the book seeks to provide a critical

Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights Journal pp. 57–128, at p. 111; and Working Paper by the Chairperson-Rapporteur, Mrs Erica-Irene A. Daes, on the Concept of ‘Indigenous People’, UN Doc. E/CN.4/Sub.2/ AC.4/1996/2 (10 June 1996) para. 64. 30 For example, the Inter-American Court of Human Rights (IACtHR) has recognised a number of communities as ‘indigenous’ despite the fact that they are descendants of African slaves who were resettled in Suriname only in the eighteenth century in the context of the slave trade. Crucially, the IACtHR based its decisions on the fact that these communities have a special relationship with their land and a long connection with the region. See Moiwana Community v. Suriname, Inter-American Court of Human Rights, Series C 124 (2005); and Saramaka People v. Suriname, Inter-American Court of Human Rights, Series C 172 (2007). In a similar vein, the African Commission on Human and Peoples’ Rights has taken the view that ‘definitely all Africans are indigenous, however, if the concept of indigenous is exclusively linked with a colonial situation, it leaves us without a suitable concept for analyzing internal structural relationships of inequality that have persisted after liberation from colonial dominance’. Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted by the African Commission on Human and Peoples’ Rights by Resolution 65 (XXXIV) 03, 20 November 2003, p. 92. 31 For example, the Committee on the Elimination of Racial Discrimination has requested countries as different as India, Cambodia, Nepal, South Africa, Nigeria, Cameroon, Fiji, Vietnam and Japan to comply with various international obligations concerning indigenous peoples’ rights. On its part, the Committee on the Rights of the Child has brought indigenous children’s rights to the attention of countries such as Uganda, Nepal, the Philippines, Thailand, Cameroon and Vietnam. It should also be noted that South Africa, Kenya, Botswana, the Philippines, Nepal, Namibia and the Republic of Congo are among the countries that the UN Special Rapporteur on the Rights of Indigenous Peoples has recently visited in the ambit of his mandate.

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8 Introduction and realistic assessment of the significance and implications of the Declaration for indigenous peoples. Those who have taken an optimistic approach to the transformative potential of the Declaration have tended to do so relatively uncritically. At the same time, the more cynical analyses of the UNDRIP have arguably been informed by a deeper and broader scepticism about the existing system of international law, which is seen as inherently flawed and incapable of providing credible responses to the radical claims advanced by groups such as indigenous peoples. Against this background, Chapter 2 will explore the legal framework of the Declaration, paying special attention to three sets of provisions that are considered central to the process of re-empowerment of indigenous peoples, namely those regarding their right to self-determination, land rights and participatory rights. The meaning and scope of these provisions will be assessed in the light of three key elements: first, their correlation to the demands of indigenous peoples as formulated during the initial stage of the drafting process; second, their relationship to existing standards in the area of ethno-cultural group rights; and, third, their potential to work in practice. Chapter  2 will highlight that, by stretching existing rules and principles of international law applicable to ethno-cultural groups, the final content of the Declaration accommodates to a significant extent the claims of the vast majority of indigenous peoples. The chapter will also show that, despite the inevitable difficulties surrounding their effective realisation, there is evidence to suggest that the complex provisions included in the UNDRIP can actually work in practice. Chapter 3 will complete the analysis of the significance of the Declaration by examining the legal status of the UNDRIP. Being adopted by means of a United Nations (UN) General Assembly resolution, the Declaration belongs to what is normally referred to in international law jargon as soft law. Soft law instruments do not per se produce legally binding obligations. In fact, some have argued that soft law is not law at all. This point is important because the ambiguity surrounding the legal status of the Declaration may undermine its capacity to affect State behaviour and, in turn, make a visible impact on the lives of indigenous peoples. Highlighting the problems connected with overly legalistic interpretations of the sources of international law, this chapter will argue that the Declaration should be regarded as an influential soft law instrument, that is to say, a legal instrument which despite its non-legally binding character can produce important legal effects and generate realistic expectations of conforming behaviour. Building on the analysis of the first part of the book, Part II will consider whether other groups that advance similar claims to those of indigenous peoples and share with the latter important characteristics have also been successful in their struggles to achieve the formal recognition of their human rights under international law. More specifically, Chapter 4 will examine the struggles for justice of homeland minorities, the Roma and peasants. Warning against overly optimistic assessments of the significance and implications of the UNDRIP

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Introduction 9 beyond the sphere of indigenous peoples, this chapter will highlight that homeland minorities and the Roma have not been able to emulate the legal successes of indigenous peoples, while peasants will face important obstacles in their efforts to obtain the recognition of their most far-reaching rights. The third part of the book will analyse the dynamics, factors and circumstances that contributed to the emergence of an exceptional instrument such as the UNDRIP. In particular, Chapter 5 will draw attention to the participation of indigenous peoples in the drafting of the Declaration. The capacity of indigenous peoples to engage diplomatically with States and international institutions represents a distinguishing feature of their human rights struggle in international law. This chapter will discuss the strategies and outcomes of these diplomatic efforts, drawing on insights from social movement scholarship with a view to highlighting and providing an explanation for the significant political power enjoyed by the global coalition of indigenous peoples. In doing so, it will reflect on the implications of such political power in the broader process of recognition of indigenous peoples’ rights. Chapter  6 will complete the picture by discussing two distinguishing characteristics of indigenous peoples’ claims which importantly affected the way in which States approached the question of indigenous rights. It is commonly recognised that indigenous peoples have suffered some of the world’s worst violations of human rights.32 As a result, as noted above, they have lived in a permanent state of vulnerability, socio-economic deprivation and political exclusion. This chapter will argue that these circumstances had an important effect on the perceived moral force of indigenous peoples’ human rights claims, with important implications for the process of recognition of indigenous rights. The second characteristic of indigenous peoples’ claims which affected the process of emergence of indigenous rights in international law relates to the profound relationship existing between indigenous peoples’ human rights claims and environmental sustainability. It was noted earlier in this chapter that an important factor in determining whether a group is ‘indigenous’ for the purposes of international law is the existence of a spiritual relationship with a specific territory. More broadly, it can be said that indigenous peoples favour a custodial and non-materialistic approach to land and natural resources,33 and contextually promote a vision of development that can only be achieved by respecting, rather than challenging, the limits of the natural world. At a time when the international community is placing increasing emphasis on the need to preserve the world’s environment, this chapter will suggest that the environmental dimension See, for example, B. Boutros-Ghali, ‘Foreword’ in A. Ewen (ed.), Voice of Indigenous Peoples: Native People Address the United Nations (Clear Light 1994) pp. 9–15, at p. 9. 33 J. Burger, Report from the Frontier: The State of the World’s Indigenous Peoples (Zed Books 1987) p. 12. 32

10 Introduction

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of indigenous peoples’ rights should be counted among the variables that facilitated the accommodation of indigenous rights in international law. Finally, Chapter 7 will draw some conclusions as to the significance and implications of the UNDRIP for both indigenous peoples and international law in the context of a broader discussion of the latter’s potential and limits as an instrument of justice.

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Part I

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2 The legal content of the United Nations Declaration on the Rights of Indigenous Peoples

1.  Introduction The adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration) has been widely regarded as a historic achievement for indigenous peoples.1 Symbolically the UNDRIP signals the transformation of international law from an instrument that once facilitated the dispossession and victimisation of indigenous peoples into one aiming to protect and promote their rights.2 In more practical terms, it promises to bring justice to indigenous peoples by affirming a comprehensive set of rights and principles that address the vast range of human rights problems faced by these groups around the world. These rights and principles have been typically praised for their strong content, innovative character within the broader framework of ethno-cultural group rights, and capacity to embrace indigenous understanding of, inter alia, collective rights, cultural rights and the right to self-determination.3 Accordingly, most authors have observed that the legal content of the UNDRIP has real potential to re-empower indigenous peoples.4 See, for example, the various contributions in C. Charters and R. Stavenhagen (eds), Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (IWGIA 2009); R. Coulter, ‘The UNDRIP: A Historic Change in International Law’ (2009) 45 Idaho Law Review pp. 539–553; James (Sa’ke’j) Youngblood Henderson, Indigenous Diplomacy and the Rights of Peoples: Achieving UN Recognition (Purich Publishing 2008); W. Echo-Hawk, In the Light of Justice: The Rise of Human Rights in Native America and the UN Declaration on the Rights of Indigenous Peoples (Fulcrum Publishing 2013); E. Daes, ‘The UN Declaration on the Rights of Indigenous Peoples: Background and Appraisal’ in S. Allen and A. Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart 2011) pp. 11–40. 2 This point will be further discussed in Chapter 6. 3 See, for example, J. Gilbert, ‘Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples’ (2007) 14 International Journal on Minority and Group Rights pp. 207–230; S. Errico, ‘The Draft UN Declaration on the Rights of Indigenous Peoples:  An Overview’ and ‘The UN Declaration on the Rights of Indigenous Peoples is Adopted:  An Overview’ (2007) 7 Human Rights Law Review pp. 741–759; A. Xanthaki, ‘Indigenous Rights in International Law over the Last 10 Years and Future Developments’ (2009) 10 Melbourne Journal of International Law pp. 27–37. 4 See, for example, J. Anaya and S. Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples:  Towards Re-empowerment’, Jurist (3 October 2007), at http://jurist.org/ forum/2007/10/un-declaration-on-rights-of-indigenous.php (accessed 20 September 2015). 1

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14  The legal content of the UNDRIP These optimistic views, however, have been challenged by a number of scholars who, taking a more radical approach to the question of the UNDRIP’s overall value, have argued that the Declaration does not go far enough in addressing the problems faced by indigenous peoples. For example, some have noted that, by failing to endorse a full and meaningful right to self-determination, the UNDRIP ‘consecrates in law the very structure of internal colonial domination and exploitation at the hands of State entities from which indigenous nations have been struggling to free themselves’,5 while others have suggested that the UNDRIP ‘represents the continued power and persistence of an international human rights paradigm that eschews strong forms of indigenous self-determination’, privileging individual civil and political rights over equally important economic, social and cultural rights.6 Doubts have also been raised with respect to the (allegedly) narrow version of the principle of free, prior and informed consent (FPIC) that underpins the participatory rights of indigenous peoples in the Declaration. Thus, contrary to those who have welcomed it as a potentially transformative tool,7 some have criticised FPIC for reinforcing rather than alleviating the power disparity between States and indigenous peoples.8 These critical voices have the merit of highlighting one important problem that typically affects human rights instruments, namely that they often appear more progressive than they actually are. For example, the overall meaning and scope of a human rights instrument may be significantly restricted by the specific words that are included in, or excluded from, certain provisions. Similarly, the language of some articles may be so elusive as to dramatically reduce the prospect of implementation. These are important points that warn against superficial assessments of any human rights instrument, including the Declaration. At the same time, the more radical evaluations of the UNDRIP’s legal framework tend to overlook the importance of defining the scope of what indigenous peoples could realistically achieve in their international

W. Churchill, ‘A Travesty of a Mockery of a Sham: Colonialism as “Self-Determination” in the UN Declaration on the Rights of Indigenous Peoples’ (2011) 20 Griffith Law Review pp. 526–556, at p. 527. Others again have described the UNDRIP as ‘an instrument which ensures the continuance of the colonial project and is intent upon the assimilation of [indigenous] peoples’. I. Watson and S. Venne, ‘Taking up Indigenous Peoples’ Original Intent and a Space Dominated by State Interventions’ in E. Pulitano (ed.), Indigenous Rights in the Age of the UN Declaration (Cambridge University Press 2014) pp. 87–109, at p. 88. 6 K. Engle, ‘On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (2011) 22 European Journal of International Law pp. 141–163, at p. 142. 7 C. Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (Routledge 2015). 8 C. Rodriguez-Garavito, ‘Ethnicity.gov:  Global Governance, Indigenous Peoples, and the Right to Prior Consultation in Social Minefields’ (2011) 18 Indiana Journal of Global Legal Studies pp. 263–305. 5

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The legal content of the UNDRIP 15 endeavours. As the following analysis will illustrate, there is little doubt that indigenous peoples had to accept some compromises in the final text of the Declaration. This, however, is hardly surprising considering that, first, compromises represent a basic, and indeed almost unavoidable, aspect of any negotiation process, and, second, indigenous peoples advanced far-reaching and controversial claims that States could have hardly endorsed without some form of opposition. Under these circumstances, remaining true to principle would not necessarily require the rejection of compromises.9 Indeed, as noted by Carpenter and Riley, indigenous peoples approached the negotiations on the UNDRIP fully aware of the potential gains and losses that could occur as part of the process.10 The important point is therefore to assess whether the final provisions of the Declaration, particularly those that States tried more insistently to water down, can be said to meet the aspirations of indigenous peoples and provide credible responses to their demands and concerns. Against this background, this chapter seeks to offer a critical and realistic assessment of the legal content of the Declaration with a view to providing a first indication of whether the UNDRIP represents a valid response to the claims and needs of indigenous peoples, that is, the central question addressed in the first part of this book. In order to do so, this chapter will first provide an overview of the Declaration’s legal framework, highlighting its progressive nature and comprehensive character, and will then proceed to examine in some detail the meaning and scope of three specific sets of rights that are at the heart of the UNDRIP, namely the right to self-determination, land rights and participatory rights. Indigenous peoples consider the right to self-determination central to their claims,11 that is to say, the fundamental right from which all other rights derive. Land rights, on their part, are key to the survival of indigenous peoples.12 This is so because the special relationship that indigenous peoples have with their lands constitutes a fundamental aspect of their cultural identity. In this sense, recognising and protecting land rights becomes necessary to protect the cultures and lives of indigenous peoples. Finally, participatory rights are crucial to guarantee the effective protection of the rights and interests of indigenous peoples. Without access L. Barsh, ‘The Inner Struggle of Indigenous Peoples’ in R. Dunbar-Ortiz, D. Sambo Dorough, G. Alfredsson, L. Swepston and P. Wille (eds), Indigenous Peoples’ Rights in International Law: Emergence and Application (IWGIA 2015) pp. 88–97, at p. 93. 10 K. Carpenter and A. Riley, ‘Indigenous Peoples and the Jurisgenerative Moment in Human Rights’ (2014) 102 California Law Review pp. 173–234, at p. 233. 11 As emphatically noted by various indigenous representatives during the 1993 session of the Working Group on Indigenous Populations, the right to self-determination ‘is the heart and soul of the Declaration’. Reported in S. Pritchard (ed.), Indigenous Peoples, the United Nations, and Human Rights (Zed Books 1998) p. 46. 12 As one indigenous representative once put it, ‘the issue for indigenous peoples is the land; indigenous peoples are one with the land’. W. Means, ‘International Indian Treaty Council’ in A. Ewen (ed.), Voice of Indigenous Peoples: Native People Address the United Nations (Clear Light 1994) pp. 57–63, at p. 60. 9

16  The legal content of the UNDRIP

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to decision-making processes, States’ interests would continue to systemically trump the interests of these groups, especially in relation to development issues.13 In the following pages, the meaning and scope of these three sets of provisions will be analysed using the following questions as a guide. First, do these provisions meet the aspirations of indigenous peoples? Second, do they go far enough in protecting and promoting the rights of indigenous peoples in line with the instrument’s ambitious goals? And, third, can they work in practice?

2.  The legal content of the UNDRIP: an overview The Declaration contains 46 articles, which together provide a comprehensive and tailored response to the human rights problems faced by indigenous peoples. These articles cover a variety of issues and themes, including, inter alia, equality, self-determination, lands and natural resources, political participation, culture, religion, education, development, intellectual property and access to justice. Rather than scrutinising each individual provision, the purpose of the following discussion is to provide an overview of the broad scope and content of the UNDRIP. In doing so, this section will also provide the necessary background for the detailed analysis of the provisions of the Declaration on self-determination, land rights and participatory rights that will be conducted in the second part of the chapter. The first point to highlight is that the principle of equality lies at the centre of the Declaration’s legal framework. This is particularly important considering that, until very recently, various international and national policies were still openly aimed at assimilating indigenous peoples into dominant societies, both disrespecting indigenous rights and denying any value to indigenous cultures.14 The structure of the UNDRIP aptly reflects the importance of the principle of equality for indigenous peoples.15 It is not a coincidence that express references to equality are included not only in the Preamble but also, and more importantly, in the very first two articles of the Declaration. Thus, the Preamble affirms that ‘indigenous peoples are equal to other peoples’16 and that ‘all peoples contribute to the diversity and richness of civilizations and cultures’.17 At the same time, all sorts of discriminations based on the As noted by one indigenous representative, strong participatory rights underpinned by the principle of free, prior and informed consent are necessary to reverse a ‘development syndrome [whereby] indigenous rights to lands and resources are systematically disregarded to allow for development’. Report of the Working Group on the Draft Declaration on its Second Session, UN Doc. E/CN.4/1997/102 (10 December 1996) para. 275. 14 This point will be further developed in Chapter 6. 15 For example, during the negotiations on the UNDRIP, one indigenous representative noted that the Declaration constitutes ‘a major breakthrough’ principally because of its express recognition of the principle of equality. Report of the Working Group on the Draft Declaration on its Fourth Session, UN Doc. E/CN.4/1999/82 (20 January 1999) para. 30. 16 Preambular para. 2. 17 Preambular para. 3. 13

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The legal content of the UNDRIP 17 superiority of peoples on the basis of national origin, racial, religious, ethnic or cultural differences are declared ‘racist, scientifically false, legally invalid, morally condemnable and socially unjust’.18 Following on the Preamble, Article 1 states that indigenous peoples have the right to the full enjoyment of all human rights and fundamental freedoms as recognised in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law. More explicitly, Article 2 establishes that indigenous peoples and individuals are free and equal to all other peoples and individuals, and have the right to be free from any kind of discrimination. The recognition of the collective character of indigenous rights represents another important feature of the Declaration’s legal framework. A  detailed analysis of the controversies surrounding the meaning and implications of collective rights is beyond the scope of this discussion.19 Here it suffices to say that the international human rights system is essentially centred on the concept of individual rights, that is, rights held by individual persons. By contrast, collective rights are rights held by groups. Although collective rights have long been claimed by ethno-cultural groups to better protect various aspects of their cultural identities, international law has been reluctant to embrace them for two main reasons: first, a general scepticism about the idea that groups – as opposed to individuals – can hold rights; and, second, the potential implications of collective rights for individuals.20 Against this background, indigenous peoples stressed that collective rights are crucial to their spirituality and necessary to maintain the intergenerational nature of their social, cultural, economic and political rights, as aptly exemplified by the concept of land rights.21 They also pointed to the inherent limits of individual rights in protecting oppressed and threatened groups,22 arguing that collective rights are necessary to resist

Preambular para. 4. For a general discussion, see P. Jones, ‘Group Rights’, The Stanford Encyclopedia of Philosophy (Spring 2014 edn), at http://plato.stanford.edu/archives/spr2014/entries/rights-group (accessed 20 September 2015); P. Jones, ‘Human Rights, Group Rights, and Peoples’ Rights’ (1999) 21 Human Rights Quarterly pp. 80–107; D. Sanders, ‘Collective Rights’ (1991) 13 Human Rights Quarterly pp. 368–386; C. Holder and J. Corntassel, ‘Indigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights’ (2002) 24 Human Rights Quarterly pp. 126–151; A. Buchanan, ‘The Role of Collective Rights in the Theory of Indigenous Peoples’ Rights’ (1993) 3 Transnational Law & Contemporary Problems pp. 89–108. 20 A classic concern in this regard is that collective rights may be used by certain groups to perpetuate cultural practices that may be harmful to some of their members. 21 Report of the Working Group on the Draft Declaration on its Seventh Session, UN Doc. E/ CN.4/2002/98 (6 March 2002) para. 35. 22 This important point was fully recognised in the 2001 Declaration of the World Conference against Racism, which unambiguously affirmed that the impact of racial discrimination and related intolerance is not only associated with the denial of individual rights but also with the lack of recognition of collective rights. Included in the Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, South Africa, 31 August–7 September 2001, UN Doc. A/CONF.189/12 (25 January 2002). 18 19

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18  The legal content of the UNDRIP forced assimilation, oppose States’ unwanted intrusions into their lands and regain the right to determine their own destinies.23 Responding to States’ concerns that the Declaration would treat individual rights as second-class rights,24 indigenous peoples denied that individual rights have no place in their cultures. Instead, they argued, it is precisely a dynamic balance and connection between collective and individual rights that shapes indigenous identities.25 Arguably the Declaration has sought to reflect this dynamic model, recognising, on the one hand, a variety of indigenous collective rights and highlighting, on the other, that ‘indigenous individuals are entitled without discrimination to all human rights recognised in international law’.26 In light of all the above, the fact that the UNDRIP has embraced the collective character of indigenous peoples’ rights as demanded by indigenous peoples, becoming the first international human rights instrument to reject a purely individualistic conception of human rights,27 can hardly be overstated. Strictly connected with both the principle of equality and the collective dimension of indigenous rights, cultural rights represent a central component of the Declaration’s legal framework. Considering the historical patterns of cultural violence perpetuated against indigenous peoples, the fact that references to cultural rights abound in the Declaration is certainty not surprising.28 Attempts to deny the existence of indigenous cultures and identities included the suppression of indigenous languages and religions as well as the forcible removal of indigenous children from their families.29 Less violent forms of denial of indigenous cultural rights refer to the unlawful exploitation of indigenous cultural objects and indigenous traditional knowledge. The core provisions of the Declaration that seek to provide a response to all these For a broader discussion of the relationship between human suffering and collective rights, see W. Felice, Taking Suffering Seriously: The Importance of Collective Human Rights (State University of New York Press 1996). 23 ‘To omit or deny our collective rights in the … declaration would serve to severely undermine our most basic rights and status, as well as our integrity as indigenous peoples. It would contribute to the dispossession, exploitation, cultural genocide and genocide of indigenous peoples.’ Explanatory Note on the Collective Rights of Indigenous Peoples, Proposal by Indigenous Representatives, submitted during the Seventh Session of the Working Group on the Draft Declaration, 28 January–8 February 2002, UN Doc. E/CN.4/2002/98 (6 March 2002) Annex II. 24 See, for example, J. Crook, ‘United States Joins Australia and New Zealand in Criticising Proposed Declaration on Indigenous Peoples’ Rights’ (2007) 101 American Journal of International Law pp. 211–213. 25 Explanatory Note on the Collective Rights of Indigenous Peoples, supra note 23. 26 Preambular para. 22. 27 At the regional level, the African Charter of Human and Peoples’ Rights has also recognised several collective rights. African Charter of Human and Peoples’ Rights (27 June 1981) OAU Doc. CAB/LEG/67/3 rev. 5, 21. 28 International Law Association, ‘The Rights of Indigenous Peoples, Interim Report’, The Hague Conference, 2010, p.  16, at www.ila-hq.org/en/committees/index.cfm/cid/1024 (accessed 20 September 2015). 29 Ibid.

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The legal content of the UNDRIP 19 forms of injustice are found in Articles 11, 12, 13 and 31. Article 11 establishes that indigenous peoples have the right to practise and revitalise their cultural traditions and customs, including the right to maintain, protect and develop the past, present and future manifestations of their culture. Article 12 refers to the right of indigenous peoples to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies, while Article 13 states that indigenous peoples have the right to revitalise, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures. Finally, Article 31 is the key provision with regard to culture and traditional knowledge. Challenging the classic individualistic regime of intellectual property rights, which ascribes primary importance to the economic aspect of culture, it affirms that indigenous peoples have the right to maintain, control, protect and develop their intellectual property over their cultural heritage, traditional knowledge and traditional cultural expressions. By connecting intellectual property with the concepts of cultural heritage, traditional knowledge and traditional cultural expressions, Article 31 has the merit of linking the question of intellectual property rights with that of cultural rights, promoting the inclusion of the former within the UNDRIP’s normative framework. As a result, the protection of the intellectual property of indigenous peoples becomes inseparable from the protection of their broadly defined cultural rights.30 The question of the cultural, as well as physical, survival of indigenous peoples is also addressed in Articles 7 and 8 of the UNDRIP. After affirming the right of indigenous individuals to life, physical and mental integrity, liberty and security of person, Article 7 expressly provides that indigenous peoples shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group. Article 8 importantly adds that indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. In many respects, the provisions of the Declaration concerning media and education are also related to the broader question of culture. Media and education, once used by many governments to promote the forced assimilation of indigenous peoples, are now seen as important tools to support the re-affirmation of indigenous peoples’ cultures and identities.31 In this sense, Article 14 states that indigenous peoples have the right to establish and control their educational systems and institutions, as well as to provide education in their own languages, while Article 15 establishes that indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations, which shall be appropriately reflected in education and For a broader discussion, see M. Barelli, ‘The United Nations Declaration on the Rights of Indigenous Peoples: A Human Rights Framework for Indigenous Intellectual Property Rights’ in M. Rimmer (ed.), Indigenous Intellectual Property: A Handbook of Contemporary Research (Edward Elgar 2015) pp. 47–65. 31 International Law Association, ‘The Rights of Indigenous Peoples’, supra note 28, p. 25. 30

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20  The legal content of the UNDRIP public information. Finally, Article 16 affirms that indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination. Another distinguishing aspect of the Declaration is that it successfully combines the recognition of civil and political rights with economic and social rights. The express recognition of the latter is particularly significant because Western accounts of international human rights have tended to regard economic and social (as well as cultural) rights as second-class rights.32 By contrast, the Declaration acknowledges that the current socio-economic gap between indigenous peoples and other sectors of the relevant populations has its origins in the various forms of colonialism, oppression and domination historically suffered by the former.33 As a consequence, Article 21 affirms that indigenous peoples have the right to the improvement of their economic and social conditions. More generally, Article 20 refers to the right of indigenous peoples to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities. Article 23 further recognises that indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development.34 Finally, the Declaration’s direct concern with the processes of interpretation and implementation of its legal content suggests that the drafters aimed at creating an instrument that was intended to work in practice instead of simply enunciating abstract rights. Thus, Article 46(3) assists in the process of interpretation of the Declaration by highlighting that its provisions must be read and understood in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith. With regard to the implementation phase, several provisions of the Declaration specifically identify those international bodies which are entrusted to promote and monitor compliance with the instrument. In particular, Article 41 requires that the organs and specialised agencies of

For a discussion, see D. Whelan and J. Donnelly, ‘The West, Economic and Social Rights and the Global Human Rights Regime:  Setting the Record Straight’ (2007) 29 Human Rights Quarterly pp. 908–949; A. Kirkup and T. Evans, ‘The Myth of Western Opposition to Economic, Social, and Cultural Rights? A Reply to Whelan and Donnelly’ (2009) 31 Human Rights Quarterly pp. 221–237; S. Kang, ‘The Unsettled Relationship of Economic and Social Rights and the West: A Response to Whelan and Donnelly’ (2009) 31 Human Rights Quarterly pp. 1006–1029; D. Whelan and J. Donnelly, ‘The Reality of Western Support for Economic and Social Rights: A Reply to Susan L. Kang’ (2009) 31 Human Rights Quarterly pp. 1030–1054; D. Whelan and J. Donnelly, ‘Yes, a Myth:  A  Reply to Kirkup and Evans’ (2009) 31 Human Rights Quarterly pp. 239–255. 33 International Law Association, ‘The Rights of Indigenous Peoples’, supra note 28, p. 28. 34 For a broader discussion, see H. Quane, ‘A Further Dimension to the Interdependence and Indivisibility of Human Rights? Recent Developments Concerning the Rights of Indigenous Peoples’ (2012) 25 Harvard Human Rights Journal pp. 49–83. 32

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The legal content of the UNDRIP 21 the United Nations (UN) as well as other intergovernmental organisations contribute to the full realisation of the provisions of the Declaration, while Article 42 establishes that all UN organs and States shall promote respect for the Declaration and follow up its effectiveness. With a view to further promoting the effective implementation of the UNDRIP, Article 40 states that indigenous peoples have the right to access to just and fair dispute resolution procedures as well as to effective remedies for all infringements of their individual and collective rights. Crucially, it also recognises that judicial decisions must give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned. This brief overview has highlighted some important features of the Declaration, particularly its progressive nature and comprehensive character. In light of the above, to say that the UNDRIP represents an innovative and ambitious instrument in the sphere of international human rights law would certainly not be an overstatement. That said, in order to establish whether indigenous peoples effectively succeeded in obtaining an adequate and fair recognition of their rights, it is necessary to examine more carefully the content of the principal provisions of the Declaration.

3.  The right to self-determination35 During the decolonisation process, the right to self-determination was generally understood as the right of peoples subject to alien subjugation, domination and exploitation to enjoy complete independence.36 At that time, the ‘whole peoples’, and not segments thereof, were entitled to the right to self-determination. With the end of colonisation, however, things began to change. In particular, recognising the continuing character of the right, instruments such as the International Covenant on Civil and Political Rights On the right to self-determination generally, see, among others, A. Cassese, The Right of Self-Determination:  A  Legal Reappraisal (Cambridge University Press 1995); J. Summers, Peoples and International Law (Brill 2014); C. Tomuschat (ed.), Modern Law of Self-Determination (Martinus Nijhoff Publishers 1993); T. Musgrave, Self-Determination and National Minorities (Clarendon Press 1997). For a more detailed analysis of indigenous peoples’ right to self-determination, see M. Barelli, ‘Shaping Indigenous Self-Determination:  Promising or Unsatisfactory Solutions?’ (2011) 13 International Community Law Review pp. 413–436; P. Aikio and M. Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self-Determination (Abo Akademi University 2000); A. Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture, and Land (Cambridge University Press 2007) Chapter  4; and J. Anaya, Indigenous Peoples in International Law (2nd edn, Oxford University Press 2004) Chapters 3 and 4. 36 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Resolution 1514 (XV), 14 December 1960. It should be noted that independence was only one of the available options for the peoples concerned. See Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for under Article 73(e) of the Charter, Annex, Principle VI, GA Resolution 1541 (XV), 15 December 1960. 35

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22  The legal content of the UNDRIP (ICCPR) and the International Covenant on Economic, Social and Cultural Rights gradually extended the applicability of self-determination to ‘all peoples’.37 This, in turn, led to the modern distinction between the internal and external aspects of self-determination, which, as a consequence, ceased to be a right linked exclusively to the idea of independence. Under these circumstances, the recognition of some sub-national groups as beneficiaries of the right to (internal) self-determination has been increasingly supported by judicial practice and academic writing.38 According to this view, these groups should have the right to freely pursue ‘their political, economic, social and cultural development within the framework of an existing State’.39 This implies that the respective governments should protect their cultural, religious and linguistic rights, facilitate the preservation of their identity and guarantee their effective participation in national decision-making processes. The majority of States have been rather cautious in endorsing this view, fearing that groups within their borders would interpret any reference to self-determination in accordance with the ‘secessionist overtones’40 typical of the decolonisation period. As a result, international legal instruments have typically refrained from expressly recognising a right to self-determination to sub-national groups. For example, as will be further discussed in Chapter 4, it is telling that the 1992 United Nations Declaration on the Rights of Persons Common Article 1(1) of the ICCPR and the International Covenant on Economic, Social and Cultural Rights reads as follows: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ International Covenant on Civil and Political Rights, 999 UNTS 171 (16 December 1966)  and International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3 (16 December 1966). 38 See, for example, R. McCorquodale, ‘Self-Determination:  A  Human Rights Approach’ (1994) 43 International and Comparative Law Quarterly pp. 857–885; R. Higgins, Problems and Process: International Law and How We Use it (Clarendon Press 1995) pp. 121–128; A. Cassese, The Right of Self-Determination: A Legal Reappraisal (Cambridge University Press 1995) pp. 348–359; A Buchanan, Justice, Legitimacy and Self-Determination:  The Moral Foundations of International Law (Oxford University Press 2004) pp. 188–199 and 258; G. Pentassuglia, ‘State Sovereignty, Minorities and Self-Determination:  A  Comprehensive Legal View’ (2002) 9 International Journal on Minority and Group Rights pp. 303–324. With regard to the position of judicial and quasi-judicial bodies, see, among others, UN Human Rights Committee (HRC), CCPR General Comment No. 12: Article 1 (Right to Self-Determination), The Right to Self-Determination of Peoples, 13 March 1984, at www .refworld.org/docid/453883f822.html (accessed 20 September 2015); Katangese Peoples’ Congress v. Zaire, African Commission on Human and Peoples’ Rights, Comm. No. 75/92 (1995); Committee on the Elimination of Racial Discrimination, General Recommendation 21, The Right to Self-determination (Forty-Eighth Session, 1996), UN Doc. A/51/18, Annex VIII at 125 (1996), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.6 at 209 (2003); and Reference re Secession of Quebec, Supreme Court of Canada [1998] 1 SCR 217. 39 Reference re Secession of Quebec, supra note 38, para. 126. 40 T. Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law pp. 46–91, at p. 54. 37

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The legal content of the UNDRIP 23 Belonging to National or Ethnic, Religious and Linguistic Minorities41 contains no reference to self-determination. Similarly, Article 1 of the 1989 International Labour Organization Convention on Indigenous and Tribal Peoples in Independent Countries (ILO 169) pre-empts any possible controversy regarding the use of the term ‘peoples’ by stating that indigenous and tribal peoples should not be regarded as ‘peoples’ for the purposes of the right to self-determination.42 The Declaration departs from this conservative approach, establishing, in Article 3, that indigenous peoples have the right to self-determination and that, by virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development. On the basis of what has been said before, it is clear that Article 3 represents a major development in the international law of self-determination, notably one that many thought impossible to achieve.43 States had serious reservations about this provision, which, in their view, could be exploited by some indigenous groups who never repudiated secession as a means to exercise their right to self-determination.44 Some States argued that because indigenous people were not ‘peoples’ for the purposes of international law, they should not be entitled to this right.45 Others could not approve Article 3 because, in their view, it went beyond existing international law.46

General Assembly Resolution 47/135, Annex, 47 UN GAOR Supp. (No. 49) at 210, UN Doc. A/47/49 (1993). 42 ‘The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.’ International Labour Organization, Indigenous and Tribal Peoples Convention, C169 (27 June 1989), Article 1, at www.refworld.org/docid/3ddb6d514.html (accessed 20 September 2015). 43 It is reported that when indigenous peoples first talked about self-determination in a formal session of the Working Group on Indigenous Populations, the members of the group ‘thought the sky would fall in’. R. Morgan, Transforming Law and Institution: Indigenous Peoples, the United Nations and Human Rights (Ashgate 2011) p. 111. 44 Other indigenous groups have more vaguely observed that self-determination does not necessarily mean independence. For example, one indigenous representative once noted that it would be ‘unacceptable and discriminatory to restrict indigenous peoples’ right of self-determination to internal self-determination … although the vast majority of indigenous peoples would implement their self-determination through autonomy and self-government arrangements, one could not limit [it] to such arrangements’. Report of the Working Group on the Draft Declaration on its Sixth Session, UN Doc. E/CN.4/2001/85 (6 February 2001) para. 79. Statements of this kind seem to confirm that, while it is true that the vast majority of indigenous peoples do not aim to create their own State, some of them actually do seek to become independent. On this point, see also J. Henriksen, ‘Implementation of the Right of Self-Determination of Indigenous Peoples within the Framework of Human Security’, International Conference on Indigenous Peoples’ Self-Determination and the Nations State in Asia, Baguio, the Philippines, 18–21 April 1999, at www.iwgia.org/ human-rights/self-determination (accessed 20 September 2015). 45 Report of the Working Group on the Draft Declaration on its First Session, UN Doc. E/ CN.4/1996/84 (4 January 1996) para. 44. 46 Ibid., para. 43. 41

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24  The legal content of the UNDRIP Indigenous peoples were not prepared to compromise on this fundamental question. As an indigenous representative put it, self-determination is ‘the river in which all other rights swim’,47 meaning that it is essential for the enjoyment of all the other rights of indigenous peoples. Accordingly, no declaration could be contemplated without an express recognition of this right.48 Proposals aimed at expressly recognising only a right of internal self-determination were also considered unacceptable, because restricting indigenous peoples’ right to self-determination to ‘internal self-determination’, while all other peoples enjoy a full and unqualified version of the right, would violate the principle of equality which was discussed earlier in this chapter.49 In light of the above, the fact that Article 3 was ultimately adopted in its original form, that is to say, as included in the 1994 draft declaration,50 represents a major victory for indigenous peoples. This remains true despite the inevitable difficulties surrounding the practical implementation of such a complex and controversial right. In this respect, Article 4 and Article 46(1), the latter a last-minute inclusion requested by the African group of States that was aimed at safeguarding the principle of territorial integrity,51 are important provisions that contribute to delineate the way in which self-determination should be implemented. Article 46(1) affirms that: Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform

M.  Dodson, cited in R. De Costa, A Higher Authority:  Indigenous Transnationalism and Australia (University of New South Wales Press 2006) p. 137. 48 See, for example, Report of the Working Group on the Draft Declaration on its First Session, UN Doc. E/CN.4/1996/84 (4 January 1996) para. 47; and Report of the Working Group on the Draft Declaration on its Sixth Session, UN Doc. E/CN.4/2001/85 (6 February 2001) paras. 71–74. 49 For example, some States suggested that Article 3 should read as follows: ‘indigenous peoples have the right to internal self-determination. By virtue of that right, they may negotiate their political status within the framework of the existing nation-state and are free to pursue their economic, social and cultural development’. Report of the Working Group on the Draft Declaration on its Eighth Session, UN Doc. E/CN.4/2003/92 (6 January 2003) Annex, Compilation of Amendments proposed by some States for future discussion based on the Sub-Commission text. 50 Adopted in 1994 by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1994/2/Add.1 (20 April 1994). As will be discussed in Chapter 3, this draft was essentially the product of indigenous representatives and the five independent experts of the Working Group on Indigenous Populations. States became (more) involved in the drafting process once the Sub-Commission adopted this document and sent it to the (then) Commission on Human Rights. 51 On the position of African States in relation to the UNDRIP, see W. van Genugten, ‘The African Move Towards the Adoption of the 2007 Declaration on the Rights of Indigenous Peoples: The Substantive Arguments Behind the Procedures’, at http://ssrn.com/abstract=1103862 or http://dx.doi.org/10.2139/ssrn.1103862 (accessed 20 September 2015). 47

The legal content of the UNDRIP 25

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any act contrary to the Charter of the United Nations or construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. Invoking an unqualified principle of territorial integrity, Article 46(1) requires that indigenous peoples exercise their right to self-determination within the framework of existing States. As will be discussed below, this provision does not have the final say about the meaning and implications of self-determination in the Declaration. Nevertheless, the practical model of self-determination envisaged by Article 46(1) seems to be generally in line with the aspirations of the vast majority of indigenous peoples, whose self-determination claims are not aimed at dissolving existing States, but, rather, building new relationships with them in a spirit of partnership and mutual respect.52 In accordance with this view, Article 4 affirms that, in exercising their right to self-determination, indigenous peoples have the right to autonomy or self-government in matters relating to their internal and local affairs. Although no international law instrument had previously recognised a right to autonomy to sub-national groups,53 autonomous regimes have often been described as one of the most efficient means to give effect to these groups’ right to (internal) self-determination. In this sense, power-sharing institutions, aimed at guaranteeing equal participation in national decision-making processes, and territorial autonomous arrangements, aimed at recognising different degrees of self-government to geographically concentrated groups, could provide positive responses to the needs and demands of indigenous peoples. That said, Article 4 cannot dictate the manner in which indigenous self-determination should be ultimately implemented; this can only be determined on the basis of the specific circumstances of each individual case and by bearing in mind that autonomy represents only one possible dimension of self-determination. More constructively, implementation efforts should focus on the true essence of indigenous self-determination, namely the right of indigenous peoples to ‘be who they are and live the way they Report of the International Workshop on the Draft United Nations Declaration on the Rights of Indigenous Peoples, Patzcuaro, Michoacán, Mexico (26–30 September 2005), UN Doc. E/CN.4/2005/WG.15/CRP.1. Commenting on this question, James Anaya, former UN Special Rapporteur on the Rights of Indigenous Peoples, has emphasised that ‘indigenous peoples themselves have almost uniformly denied aspirations to independent statehood in demanding self-determination’. J. Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era’ in C. Charters and R. Stavenhagen (eds), Making the Declaration Work: The UN Declaration on the Rights of Indigenous Peoples (IWGIA 2009) pp. 184–199, at p. 185. 53 For a broader discussion of the right to autonomy in international law, see Z. Skurbaty (ed.), Beyond a One-Dimensional State: An Emerging Right to Autonomy? (Martinus Nijhoff Publishers 2005). 52

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26  The legal content of the UNDRIP want to live’.54 This approach acknowledges a mutually reinforcing relation between self-determination and a number of fundamental rights contained in the Declaration: on the one hand, the recognition of the right to self-determination strengthens the nature and scope of these rights, while, on the other, the effective exercise of the latter becomes vital for the actual realisation of self-determination.55 For example, as self-determining peoples, indigenous peoples should have the right to maintain and strengthen their political, legal, economic, social and cultural institutions (Article 5), as well as their juridical systems or customs (Article 34), to re-affirm their culture and spirituality (Article 11), and to control their development in conformity with their own values and priorities (Article 23). More importantly, indigenous self-determination is fundamentally intertwined with the other two pillars of the UNDRIP that will be discussed in the following pages, namely land rights and participatory rights. The connection between self-determination and land rights is expressly recognised in the Preamble to the Declaration, which affirms that, by controlling their lands, indigenous peoples will be able to promote their own development in accordance with their aspirations and needs.56 This suggests that the capacity of indigenous peoples to effectively control their destiny depends, in turn, on their capacity to exercise effective control over their lands.57 With regard to participatory rights, the Declaration not only recognises that indigenous peoples have the right to participate in decisions affecting them but also requires that States consult them in order to obtain their FPIC. Such strong consultative rights constitute a central element of indigenous self-determination. At one level, they recognise the fundamental right of indigenous peoples to have a say in national decision-making processes, while, at another, they represent an important tool to resist States’ undue interferences in the affairs and development of indigenous peoples. J. Henriksen, ‘Implementation of the Right to Self-Determination of Indigenous Peoples’ (2001) 3 Indigenous Affairs pp. 6–21, at p. 14. 55 In a similar way, the Human Rights Committee has stated that the right of all peoples to self-determination established by Article 1 of the ICCPR affects the way in which other provisions of the instrument, especially Article 27, should be read and interpreted. See, for example, Apirana Mahuika et  al. v.  New Zealand, Communication No. 547/1993, CCPR/C/70/D/547/1993 (2000); J.G.A. Diergaardt v.  Namibia, Communication No. 760/1997, CCPR/C/69/D/760/1997 (6 September 2000); and Gillot et  al. v.  France, Communication No. 932/2000, CCPR/C/75/D/932/2000 (26 July 2002). See also the following concluding observations:  Mexico 1999 (CCPR/C/79/Add.109, 27 July 1999, para. 19); Norway 1999 (CCPR/C/79/Add.112, 1 November 1999); Canada 1999 (CCPR/C/79/Add.105, 7 April 1999, para. 8); Australia 2000 (A/55/40, 24 July 2000, paras. 498–528); Sweden 2002 (CCPR/CO/74/SWE, 24 April 2002). 56 Preambular para. 10. 57 See, for example, the statements of several indigenous representatives at the First Session of the Working Group on the Draft Declaration, UN Doc. E/CN.4/1996/84 (4 January 1996) para. 84; and the Report of the Working Group on the Draft Declaration on its Eighth Session, UN Doc. E/CN.4/2003/92 (6 January 2003) para. 35. 54

The legal content of the UNDRIP 27

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3.1  External self-determination As noted above, the vast majority of indigenous peoples do not pursue secessionist agendas. For this reason, the understanding of self-determination described in the previous pages essentially meets their aspirations. To say that, however, is not to say that the Declaration prevents indigenous peoples from exercising any form of external self-determination. Two considerations should be made in this regard. First, other provisions of the Declaration recognise the right of indigenous peoples to exercise certain prerogatives of external self-determination. In particular, Article 36 establishes that indigenous peoples, especially those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders. Second, and more importantly, the implicit reference to internal self-determination contained in Article 46(1) should not be read as ruling out the validity of all secession claims. By invoking an absolute principle of territorial integrity, Article 46(1) seems to prima facie exclude the viability of these claims for indigenous peoples. However, the fact that this provision partially diverges from the international legal framework that regulates the right to self-determination carries some important consequences for indigenous peoples. In particular, the doctrine of remedial secession postulates that a sub-national group would be entitled to secede, as a last measure, from an existing State in order to stop systematic and severe forms of oppression and subjugation.58 This doctrine is supported by important instruments such as the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (Friendly Declaration)59 and the Vienna Declaration and Programme

See, among others, McCorquodale, ‘Self-Determination: A Human Rights Approach’, supra note 38, p. 857; A. Cassese, The Right of Self-Determination: A Legal Reappraisal (Cambridge University Press 1995) pp. 118–120; J. Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’ in P. Alston (ed.), Peoples’ Rights (Oxford University Press 2000) pp. 7–68, pp. 56 and 57. See also Advisory Opinion on the Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo, 2010 ICJ 141 (22 July), Separate Opinions of Judges Yusuf and A.  Cancado Trindade. For a more critical view of the legal basis of the doctrine of remedial secession, see T. Jaber, ‘A Case for Kosovo? Self-Determination and Secession in the 21st Century’ (2011) 15 International Journal of Human Rights pp. 926–947, at p. 936; P. Hilpold, ‘The Kosovo Case and International Law: Looking for Applicable Theories’ (2009) 8 Chinese Journal of International Law pp. 47–61, at p. 55; and J. Summers, ‘The Right of Self-Determination and Nationalism in International Law’ (2005) 12 International Journal on Minority and Group Rights pp. 325–354, at p. 335. 59 Paragraph 7, Principle V establishes that ‘nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging 58

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28  The legal content of the UNDRIP of Action (Vienna Declaration).60 These instruments affirm that only those States that represent the whole people belonging to their territories without distinction as to, inter alia, ethnicity, language and culture may avail themselves of the principle of territorial integrity. In other words, they see the principle of territorial integrity as relative rather than absolute. Put simply, if a government severely and systematically discriminates against one group, denying it its right to self-determination, that group may be entitled to secession as ultima ratio. Importantly, two passages of the Preamble to the Declaration refer to, generally, the international law of self-determination and, specifically, the Vienna Declaration that was mentioned above.61 This means that the relativity of the principle of territorial integrity, implicitly rejected by Article 46(1), has been brought within the normative context of the UNDRIP by means of two preambular paragraphs. While one may argue that the wording of Article 46(1) carries more weight than the indirect reference found in a preambular paragraph, it should be remembered that preambles form an integral part of their respective instruments for interpretation purposes.62 This, combined with the strong language of Article 3, suggests that the restrictive language of Article 46(1) cannot in itself determine the actual boundaries of the indigenous right to self-determination envisioned in the Declaration. Certainly, the existence of a right to remedial secession in international law remains open to debate. That said, while States often succumb to realpolitik when dealing with remedial secession claims,63 the right has found widespread support in academic writing and has been validated, at least implicitly, to the territory without distinction as to race, creed or colour’ (emphasis added). UN GA Res. 2625, Annex, 25 UN GAOR, Supp. (No. 28), UN Doc. A/5217 at 121 (1970). 60 After recognising that all peoples have the right to self-determination, the Vienna Declaration affirms that ‘in accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, this shall not be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind’ (emphasis added). UN GA, 25 June 1993, A/CONF.157/23. 61 Preambular paras. 16 and 17: ‘Acknowledging that … the Vienna Declaration and Programme of Action affirm[s]‌the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development’; and ‘Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law.’ 62 Vienna Convention on the Law of Treaties (23 May 1969), United Nations, Treaty Series, vol. 1155, p. 331, Article 31. 63 On this issue, see C. Borgen, ‘The Language and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia’ (2009) 10 Chicago Journal of International Law pp. 1–33; R. Falk, ‘The Kosovo Advisory Opinion:  Conflict Resolution and Precedent’ (2011) 105 American Journal of International Law pp. 50–59; and J. Vidmar, ‘Remedial Secession in International Law:  Theory and (Lack of) Practice’ (2010) 6 St Antony’s International Review pp. 37–56.

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The legal content of the UNDRIP 29 in a number of important judicial decisions.64 It goes without saying that the international community will be more willing to disregard the principle of territorial integrity, and validate secessionist aspirations, when the latter originate from particularly serious instances of oppression. This, however, should not be taken to suggest that only the most extreme cases of human rights violations, e.g. acts of genocide, could legitimise statehood claims. In light of the above, and amidst discussions on the precise scope and legal status of a right to remedial secession in international law, it is important to highlight that the Declaration does not prevent indigenous peoples from legitimately claiming the enjoyment of this far-reaching right.

4.  The right to own and control ancestral lands Along with the right to self-determination, the provisions concerning land rights are arguably the most important and contested provisions of the Declaration. For indigenous peoples, the land is the home of the ancestors, the provider of everyday material needs, and the future held in trust for coming generations.65 Thus, the relationship that indigenous peoples have with their traditional lands not only represents their main means of subsistence but also forms an integral part of their cultural identity.66 It follows that failing to recognise the profound relationship that indigenous peoples have with their lands would inevitably lead to the gradual deterioration of these groups.67 For all these reasons, indigenous representatives demanded that a comprehensive and robust set of land rights be included in the Declaration. As with self-determination, no constructive relationship with States could be developed and maintained in the absence of a formal recognition of these crucial rights.

See the relevant discussions in Hilpold, ‘The Kosovo Case and International Law’, supra note 58, pp. 55 and 56; and H. Quane, ‘New Directions for Self-Determination and Participatory Rights?’ in Allen and Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples, supra note 1, pp. 259–288, at 261. See also Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p.  403, Separate Opinions of Judges Yusuf (para. 11)  and A.  Cancado Trindade (paras. 178–181); and the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, pp.  135–141, at http://rt.com/files/politics/ georgia-started-ossetian-war/iiffmcg-volume-ii.pdf (accessed 20 September 2015). With regard to judicial and quasi-judicial decisions, see Katangese Peoples’ Congress v. Zaire, supra note 38; and Reference re Secession of Quebec, Supreme Court of Canada, supra note 38. 65 ‘Human Rights and the Environment’, Preliminary Report Prepared by Mrs Fatma Zhora Ksentini, Special Rapporteur, UN Doc. E/CN.4/Sub.2/1991/8 (2 August 1991) para. 25. 66 Inter-American Court of Human Rights, Case of the Yakye Axa Indigenous Community v. Paraguay (Merits, Reparations and Costs) Judgment of 17 June 2005. Series C No. 125, para. 135. 67 Indigenous Peoples and their Relationship to Land, Final Working Paper prepared by the Special Rapporteur, Mrs Erica-Irene A. Daes, UN Doc. E/CN.4/Sub.2/2000/25 (30 June 2000) para. 20. 64

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30  The legal content of the UNDRIP The Declaration provides an important response to these concerns and demands. Its provisions go beyond those included in previous international statements on indigenous rights, particularly ILO 169, and reflect to a significant extent the views and aspirations of indigenous peoples. Article 25 introduces the inspiring principle of the land rights regime envisioned by the Declaration. It affirms that indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories and resources, and to uphold their responsibilities to future generations in this regard. The reference to ‘land, territories and resources’, reiterated in other similar provisions, well captures the essence and scope of this distinctive relationship. Article 26 is arguably the most important provision among those focusing on land rights.68 This article is effectively divided into three parts. In what represents a powerful affirmation of indigenous peoples’ collective rights over their lands, Article 26(2) establishes the right of indigenous peoples to own and control the lands, territories and resources that they currently possess. Equally importantly, Article 26(3) requires that States legally recognise and protect these lands, territories and resources, taking into account the customs, traditions and land tenure systems of the indigenous peoples concerned. In essence, this provision requires that States take concrete steps towards the actual recognition of indigenous lands by, for example, identifying and demarcating these lands. Another merit of Article 26(3) is to acknowledge that instances of land dispossession are often associated with States’ failure to recognise indigenous peoples’ traditional forms of use and control of their lands, and, accordingly, demand that indigenous land tenure systems be fully respected.69 The first part of Article 26 is more controversial. Focusing on lands no longer possessed by indigenous peoples, Article 26(1) raises concerns about the retrospective nature of indigenous land rights, especially in relation to lands that have been transferred legitimately and in good faith to other parties. States could not accept the original version of the article contained in the 1994 draft declaration because it recognised the right of indigenous peoples to own and control their traditional lands, territories and resources without distinguishing between historically and currently possessed ones.70 As one indigenous representative put it, ‘Articles 25, 26 and 3 [are] the heart and soul of the [UNDRIP]’. Report of the Working Group on the Draft Declaration on its Second Session, UN Doc. E/CN.4/1997/102 (10 December 1996) para. 248. 69 J. Gilbert and C. Doyle, ‘A New Dawn over the Land:  Shedding Light on Collective Ownership and Consent’ in Allen and Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples, supra note 1, pp. 289–328, at p. 300. 70 Article 26 of the 1994 draft declaration affirmed that ‘indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States 68

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The legal content of the UNDRIP 31 The final version of Article 26(1) more elusively states that indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, without specifying what these rights would actually entail. One potential problem related to Article 26(1) is that it allows national jurisdictions to construe the scope of indigenous peoples’ rights with respect to lands historically occupied. However, considering that some States wanted to limit the scope of the entire provision to lands presently occupied by indigenous peoples, thus avoiding any reference to traditional lands, the final wording of Article 26(1) should be seen in a more positive light.71 This is especially the case since the weaker protection offered by the Declaration to the lands that indigenous peoples have lost without their consent is importantly balanced by the content of Articles 27 and 28. Further elaborating on the obligations contained in Article 26(3), Article 27 requests States to establish fair and transparent processes aimed at recognising and adjudicating the rights of indigenous peoples pertaining to their lands, territories and resources. Crucially, the provision specifies that these lands also include those which have been traditionally owned, and therefore potentially lost, by indigenous peoples. Article 28 instead states that indigenous peoples have the right to redress for the lands, territories and resources which they have lost without their consent. Although the article does not go as far as to recognise a right to restitution for historical dispossession, it remains a powerful tool in the hands of indigenous peoples to re-assert their rights to the lands which they no longer possess. This is even more so considering that, while compensation would also be a valid option, Article 28 clearly suggests that restitution should be the preferred form of redress.72 The remaining provisions of the regime recognise the right of indigenous peoples to the conservation and protection of the environment as well as the productive capacity of their lands and resources (Article 29), and set out a general prohibition for States to engage in military activities in the lands of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned (Article 30). Finally, mention should be made of two significant provisions which fully buttress the Declaration’s commitment to a strong land rights regime: Article 8, requiring States to provide effective mechanisms for the prevention of and redress for any action which has the aim or effect of dispossessing indigenous peoples of their lands, territories or resources, and Article

to prevent any interference with, alienation of or encroachment upon these rights’. Supra note 50. 71 On this point, see also Gilbert and Doyle, ‘A New Dawn over the Land’, supra note 69, p. 298. 72 Article 28 further specifies that ‘unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress’.

32  The legal content of the UNDRIP 10, affirming that indigenous peoples should not be forcibly removed from their lands or territories.73

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4.1  Realising land rights The land rights provisions included in the Declaration appear sufficiently strong to protect the fundamental relationship that indigenous peoples have with their territories. They also seem to respond fairly and adequately to the demands and concerns of indigenous peoples. The crucial question that remains to be answered is whether they also have the potential to make a difference on the ground or whether they are too complex, or unrealistic, to work in practice. Recent judicial developments can help us to reflect upon this important point. At the outset, it should be noted that the practice of international human rights bodies is per se indicative of the potential of the indigenous land rights regime envisioned in the UNDRIP. In fact, one may say, without exaggeration, that the core principles of this regime have by now been recognised as an integral part of international human rights law. For example, treaty bodies such as the Human Rights Committee (HRC),74 the Committee on the Elimination of Racial Discrimination75 and the Committee on Economic, Social and Cultural Rights (CESCR)76 have all upheld the right of indigenous peoples to own and control their lands, recognising also the right to have these lands demarcated and, in some circumstances, returned. The African Commission on Human and Peoples’ Rights has followed this trend, with important implications for the advancement of indigenous land rights in the African continent.77 That said, none of the bodies mentioned above has dealt

‘No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.’ 74 See, for example, the following concluding observations: Mexico, UN Doc. CCPR/C/79/ Add.109 (27 July 1999)  para. 19, Brazil, UN Doc. A/51/40 (24 July 1996)  para. 337, Paraguay, UN Doc. CCPR/C/PRY/CO/2 (24 April 2006) para 23, the Philippines, UN Doc. CCPR/CO/79/PHL (1 December 2003)  para. 16, Finland, UN Doc. CCPR/ CO/82/FIN (2 December 2004) para 17, Colombia, UN Doc. CCPR/CO/80/COL (26 May 2004) para 20. 75 See CERD General Recommendation No. 23 on Indigenous Peoples, UN Doc. A/52/18, Annex V, para. 5.  See also the following concluding observations:  Sweden, UN Doc. CERD/C/64/CO/8 (10 May 2004); Australia, UN Doc. CERD/C/304/Add.101 (19 April 2000); Sri Lanka, UN Doc. A/56/18 (14 September 2001); Costa Rica, UN Doc. CERD/C/60/CO/3 (20 March 2002); Mexico, UN Doc. A/50/18 (22 September 1995). 76 See General Comment No. 21 on the right to culture incorporated in Article 15 of the International Covenant on Economic, Social and Cultural Rights, para. 36. 77 Centre for Minority Rights Development (Kenya) v. Kenya, African Commission on Human and Peoples’ Rights 276/2003 (4 February 2010) para. 209. For a detailed analysis of the case, see J. Gilbert, ‘Indigenous Peoples’ Human Rights in Africa: The Pragmatic Revolution of the African Commission on Human and Peoples’ Rights’ (2011) 60 International and Comparative Law Quarterly pp. 245–270. 73

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The legal content of the UNDRIP 33 with the various issues arising in the context of indigenous land rights as extensively as the Inter-American Court of Human Rights (IACtHR) has done. In fact, through a number of significant decisions concerning both substantive and procedural aspects of indigenous land rights, the IACtHR has established itself as the leading authority in the field, providing valuable assistance in answering the question of whether the complex and, in part, controversial provisions of the Declaration on land rights are sufficiently precise to give rise to practicable and workable rights and obligations.78 This question is particularly important considering that some States have described such provisions as overly broad, unclear, arbitrary and impossible to implement.79 At the centre of the IACtHR’s jurisprudence on indigenous land rights lies the recognition that the right to property established under Article 21 of the Inter-American Convention on Human Rights (Inter-American Convention) must be read as including the right of indigenous peoples to collectively own their ancestral lands.80 In particular, the IACtHR held that members of those groups who are characterised by, inter alia, a traditional collective form of organisation, a spiritual relationship with their ancestral lands and a communal system of ownership of the said lands are entitled to the protection provided by Article 21. A related principle established by the Court is that indigenous peoples may legitimately claim the right to own their ancestral lands without having to provide evidence of a formal title to property obtained by the State; instead, traditional possession entitles them to demand official recognition and registration of property title.81 With respect to the question of dispossession, the IACtHR held that indigenous peoples who have unwillingly left or lost possession of their ancestral lands continue to have a right to their property unless the lands have been transferred legitimately and in good faith to other parties.82 Under the latter circumstances, indigenous peoples are not left without protection. Despite lacking property rights, they have a right to restitution, which, however, cannot last indefinitely.83 As explained by the Court, the right is enforceable as long as the special relationship between an indigenous community and its land continues to exist.84 Evidence of this relationship may include On this question, see also, Gilbert and Doyle, ‘A New Dawn over the Land’, supra note 69, p. 327. See, in particular, the positions of Canada and Australia, at www.un.org/press/en/2007/ ga10612.doc.htm (accessed 20 September 2015). 80 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-American Court of Human Rights, Series C 79 (2001); Moiwana Community v.  Suriname, Inter-American Court of Human Rights, Series C 124 (2005); Comunidad Indigena Yakye Axa v.  Paraguay, Inter-American Court of Human Rights, Series C 125 (2005); Sawhoyamaxa Indigenous Community v.  Paraguay, Inter-American Court of Human Rights, Series C 146 (2006); Saramaka People v. Suriname, Inter-American Court of Human Rights, Series C 172 (2007), Kichwa Indigenous Peoples of Sarayaku v. Ecuador, Series C 245 (2012). 81 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 80, para. 151. 82 Sawhoyamaxa Indigenous Community v. Paraguay, supra note 80, para. 128. 83 Ibid., para. 131. 84 Ibid. 78

79

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34  The legal content of the UNDRIP traditional use or presence (be it through spiritual or ceremonial ties), settlements or sporadic cultivation, seasonal or nomadic gathering, hunting and fishing, and the use of natural resources associated with the customs and the culture of the community concerned.85 The Court also specified that where indigenous peoples are prevented from maintaining their unique relationship with their lands for reasons beyond their control, for example, by threats or violence, their restitution rights survive until said impediments disappear.86 At that point, the IACtHR did not shy away from the thorny question of competing interests between indigenous peoples and third parties. It noted that, while each case should be decided on the basis of its own facts and circumstances, States should always take into account that indigenous land rights are a pre-condition for indigenous peoples’ cultural and spiritual development, and are ultimately related to their right, and capacity, to survive as distinct groups.87 Accordingly, restrictions to the right of private individuals to private property ‘may be necessary in order to attain the collective objective of preserving cultural identities in a democratic and pluralist society’.88 As highlighted by the Court, however, this does not mean that every time there is a conflict between the territorial interests of private individuals, or the State, and those of indigenous peoples, the latter must necessarily prevail over the former. Thus, when States are unable, on objective and reasoned grounds, to return traditional lands to indigenous peoples, they should give them alternative lands of equal extension and quality,89 or offer adequate compensation which reflects the special meaning that the lost lands have for the group concerned.90 This overview is of paramount importance for the purpose of realistically assessing the Declaration’s potential. This is so because the IACtHR’s jurisprudence has been inspired precisely by the provisions of the UNDRIP, even when the instrument was still at the draft stage.91 This jurisprudence suggests that the indigenous land rights regime defined in the Declaration can be Ibid. Ibid., para. 132. 87 Comunidad Indigena Yakye Axa v. Paraguay, supra note 80, paras. 146 and 147. 88 Ibid., para. 148. 89 Sawhoyamaxa Indigenous Community v. Paraguay, supra note 80, para. 135. 90 Comunidad Indigena Yakye Axa v. Paraguay, supra note 80, para. 149. The IACtHR also noted that the fact that ancestral lands may have been privately held by third parties, or adequately exploited, would not in itself constitute an objective and reasoned ground. Sawhoyamaxa Indigenous Community v. Paraguay, supra note 80, paras. 138–139. 91 As confirmed by the individual concurring opinion of Judge Sergio Garcia Ramirez in the 2001 Awas Tingi case – that is, the first case in which the Court dealt with the question of indigenous land rights. The opinion described the then draft declaration as an instrument which ‘sets the standards that the international juridical community is to observe in matters bearing upon indigenous peoples’. Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 80. 85 86

The legal content of the UNDRIP 35 approached in a constructive and efficient manner despite its complex nature and far-reaching implications.

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5.  Participatory rights Intrinsically related to the right to self-determination,92 participatory rights occupy a prominent position in the Declaration. While participation can take different forms and meanings, the Declaration puts special emphasis on one particular form of participation, that is, consultation. Thus, while Article 18 affirms the general principle whereby indigenous peoples have the right to participate in decision-making in matters which would affect their rights, a crucial provision of the instrument, namely Article 19, affirms that States shall consult indigenous peoples in order to obtain their FPIC before adopting and implementing legislative or administrative measures that may affect them. The express recognition of the principle of FPIC93 confers special value on the consultative rights included in the Declaration, marking an important departure from the less ambitious rights to effective participation traditionally recognised to minorities in international law.94 The transformative potential of FPIC is self-evident: taking part in consultations knowing that one will hardly be able to oppose the outcome of the process is one thing; doing so

J. Klabbers, ‘The Right to Be Taken Seriously:  Self-Determination in International Law’ (2006) 28 Human Rights Quarterly pp. 186–206. 93 According to the ‘common practical understanding’ of FPIC elaborated by the UN Permanent Forum on Indigenous Issues:  ‘free’ should implies no coercion, intimidation or manipulation; ‘prior’ implies that consent must be sought sufficiently in advance of any authorisation or commencement of activities, and that the relevant agents should guarantee enough time for the indigenous consultation/consensus processes to take place; ‘informed’ implies that indigenous peoples should receive satisfactory information in relation to certain key areas, including the nature, size, pace, reversibility and scope of the proposed project, as well as a preliminary assessment of the likely economic, social, cultural and environmental impact (this information should be accurate and indigenous peoples should be able to fully understand the language used). Finally, ‘consent’ should be intended as a process of which consultation and participation represent the central pillars. While consultation should be undertaken in good faith, full and equitable participation of indigenous peoples should be guaranteed. Indigenous peoples should also have equal access to financial, human and material resources in order to constructively engage in this discussion. Moreover, they should be able to participate through their own freely chosen representatives and according to their customs. Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples (New York, 17–19 January 2005), UN Doc. E/C.19/2005/3, para. 45. 94 See, for example, Article 2(2) and 2(3) of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, supra note 41; and Article 15 of the Framework Convention for the Protection of National Minorities, Council of Europe, Framework Convention for the Protection of National Minorities (1 February 1995), ETS 157, which entered into force on 2 January 1998. For an academic discussion, see M. Weller, ‘Effective Participation of Minorities in Public Life’ in M. Weller (ed.), Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies (Oxford University Press 2007) pp. 477–516. 92

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36  The legal content of the UNDRIP with the awareness that the final decision might be successfully affected, or even rejected, is quite another. While several provisions of the Declaration refer to FPIC,95 it is in the area of land rights and natural resources that the principle displays its full potential.96 Recent decades have witnessed an intensification of resource exploitation around the world.97 Considering that according to some estimates, over half of the world’s remaining mineral resources are located in indigenous territories,98 it is not difficult to appreciate the potentially devastating consequences that this trend could have on indigenous peoples. For this reason, indigenous peoples did not request a simple right to participation and/ or consultation in the UNDRIP. That, in their view, would not suffice to reverse a tradition where States’ interests regularly and indistinctively trump their rights and interests. Instead, they claimed a radical interpretation of the principle of FPIC which would give them the power to veto, when necessary, State action. The position of indigenous peoples was reflected in the original version of (current) Article 32 of the Declaration, which effectively requested States to obtain the consent of indigenous peoples before contemplating actions affecting their lands.99 States had major concerns about this provision, arguing that indigenous peoples should not have the power to block projects considered of strategic importance for the development of an entire country.100 As a result of this opposition, the language of the provision was partially adjusted. Thus, the final version of Article 32 reads as follows: States shall consult indigenous peoples in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. Since the adoption of this provision there has been significant uncertainty about the meaning of the elusive expression ‘consult in order to Notably, Articles 10, 11, 19, 28, 29 and 32. J. Cariño, ‘Indigenous Peoples’ Right to Free, Prior and Informed Consent: Reflections on Concepts and Practice’ (2005) 22 Arizona Journal of International & Comparative Law pp. 19–39. 97 Doyle, Indigenous Peoples, Title to Territory, Rights and Resources, supra note 7, p. 3. 98 Ibid. 99 The original version of the article, included in the 1994 draft declaration, recognised the right of indigenous peoples ‘to require that States obtain their free and informed consent prior to the approval of any project affecting their lands’. This language de facto recognised a general right to veto for indigenous peoples, but was strongly opposed by States. See supra note 50. 100 For example, New Zealand noted that the recognition of indigenous peoples’ rights ‘must [necessarily] be balanced by the need for Governments to own or regulate resources in the interests of all their citizens’. Report of the Working Group on the Draft Declaration on its Fifth Session, UN Doc. E/CN.4/2000/84 (6 December 1999) para. 93. 95 96

The legal content of the UNDRIP 37

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obtain’.101 The drafting history of Article 32 and the statements of a number of States following the adoption of the Declaration102 suggest that this expression should not be read as conferring an overall right to veto on indigenous peoples. That said, the precise contours of FPIC remain essentially contested. The next section will shed some light on this important question by placing Article 32 within the broader normative framework of the Declaration and drawing attention to some relevant judicial practice. 5.1  A constructive approach to FPIC The first thing to note with regard to the meaning and scope of FPIC in Article 32 is that the expression ‘consult in order to obtain’ imposes stringent duties upon States, which must engage in meaningful consultations, aimed at reaching an agreement, with the affected groups. In this respect, it is telling that the proposals advanced by several States that were aimed at affirming a generic obligation ‘to seek’ the consent of indigenous peoples were ultimately dismissed.103 An important point follows from the above, namely that a State failing to carry out genuine and appropriate consultations will be found in breach of its international legal obligations towards indigenous peoples.104 Second, and more importantly, the language of Article 32 acquires additional value when read and understood in accordance with the spirit and normative context of the Declaration. As discussed in section 4 of this See, among others, Doyle, Indigenous Peoples, Title to Territory, Rights and Resources, supra note 7; J. Pasqualucci, ‘International Indigenous Land Rights:  A  Critique of the Jurisprudence of the Inter-American Court of Human Rights in Light of the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 27 Wisconsin International Law Journal pp. 51–98; Rodriguez-Garavito, ‘Ethnicity.gov’ supra note 8; D. Newman, ‘Norms of Consultation with Indigenous Peoples:  Decentralization of International Law Formation or Reinforcement of States’ Role?’ in A. Byrnes, M. Hayashi and C. Michaelsen (eds), International Law in the New Age of Globalization (Brill 2013) pp. 267–286; G. Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22 European Journal of International Law pp. 165–202. 102 At www.un.org/News/Press/docs/2007/ga10612.doc.htm (accessed 20 September 2015). 103 For example, it was proposed that States should ‘take account of the free and informed consent of indigenous peoples in the approval of any project affecting their lands and resources’ or that they should ‘seek the free and informed consent of the peoples concerned’ before adopting and implementing measures affecting them. Other proposals requested that ‘States shall use their best efforts to obtain’ or that ‘where possible, States shall undertake effective consultations’. See among others, UN Doc. E/CN.4/2004/WG.15/CRP.7 (16 December 2004)  para. 5; Report of the Working Group on the Draft Declaration on its Second Session, UN Doc. E/CN.4/1997/102 (10 December 1996) para. 280; and UN Doc. E/ CN.4/2004/WG.15/CRP.1. 104 This is recognised by virtually all human rights treaty bodies. Indeed, according to the IACtHR, the right of indigenous peoples to meaningful consultation should now be regarded as a general principle of international law. See Kichwa Indigenous Peoples of Sarayaku v. Ecuador, supra note 80, para. 164. 101

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38  The legal content of the UNDRIP chapter, the Declaration recognises and protects the special relationship that exists between indigenous peoples and their lands, territories and resources, acknowledging that this is a fundamental aspect of any indigenous culture.105 Equally importantly, the Declaration affirms that, by virtue of their right to self-determination, indigenous peoples have the right to freely pursue their economic, social and cultural development. In light of the above, allowing States to implement projects which may have serious negative consequences on the lands, lives and, ultimately, existence of indigenous peoples, without their consent, appears to be incompatible with both the spirit and normative framework of the Declaration. This would also seem to frustrate the very purpose of creating a special legal regime for indigenous peoples’ rights, as these rights are aimed at protecting not only the physical but also cultural integrity of these peoples. It follows that although FPIC may hardly be read as conferring on indigenous peoples an overreaching right to veto, it should nevertheless be interpreted in a way that guarantees the effective protection of their fundamental rights. More precisely, FPIC should be understood as requesting that the consent of indigenous peoples be obtained in relation to matters connected with their fundamental human rights and capable of producing significant negative effects on their cultures and lives. This principle was well captured by the former Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, who noted that: The specific characteristics of the consultation procedure … will necessarily vary depending upon the nature of the proposed measure and the scope of its impact on indigenous peoples … A significant, direct impact on indigenous peoples’ lives or territories establishes a strong presumption that the proposed measure should not go forward without indigenous peoples’ consent. In certain contexts, that presumption may harden into a prohibition of the measure or project in the absence of indigenous consent.106 Crucially, this interpretation has gained increasing judicial recognition.107 For example, the IACtHR has held that in the case of large-scale development projects that would have a major impact within indigenous peoples’ In the words of the IACtHR, the culture of indigenous peoples ‘directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview, their religiosity, and therefore, of their cultural identity’. Case of the Yakye Axa Indigenous Community v. Paraguay, supra note 80, para. 135. 106 Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc. A/66/288 (10 August 2011) paras. 82 and 83. 107 For a more detailed discussion, see M. Barelli, ‘Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead’ (2012) 16 International Journal of Human Rights pp. 1–24. 105

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The legal content of the UNDRIP 39 territories, States have a duty not only to consult with indigenous peoples but also to obtain their FPIC.108 The same degree of protection needs to be guaranteed when the cumulative effects of small-scale projects would resemble that of a large-scale project.109 In other words, the Court has endorsed the view that under certain circumstances, namely when a project is likely to cause profound social and economic changes in the territories and lives of indigenous peoples, the latter should be entitled to a more rigorous protection. Other international human rights bodies have validated the importance of a sliding-scale approach to indigenous peoples’ participatory rights, linking the issue of FPIC with the nature of and effects that a proposed initiative will have on their fundamental human rights. In Poma Poma v. Peru, the HRC noted that the admissibility of measures which substantially compromise or interfere with the culture of indigenous peoples depends on whether the latter have had the opportunity to participate in the relevant decision-making process.110 Crucially, the HRC added that, under those circumstances, participation must be effective, explaining that this would require not mere consultation, but, rather, the FPIC of the community affected. In a similar manner, the CESCR noted that States should ‘allow and encourage the participation of … indigenous peoples … in the design and implementation of laws and policies that affect them’, specifying that the FPIC of these groups should be obtained ‘when the preservation of their cultural resources, especially those associated with their way of life and cultural expression, are at risk’.111 Such a flexible approach to FPIC has also been endorsed by the African Commission on Human and Peoples’ Rights, which addressed this question in the context of the Centre for Minority Rights Development (Kenya) v.  Kenya case. Aligning its reasoning with that of the IACtHR, the African Commission took the view that States have a duty not only to consult but also to obtain the FPIC of indigenous peoples in relation to development or investment projects that would have a major impact within their territory.112 Crucially, a number of national courts have also subscribed to this line of reasoning, further contributing to legally defining the practical contours of this important principle.113 Saramaka People v. Suriname, supra note 80, para. 134. Inter-American Court of Human Rights, Saramaka People v.  Suriname, Judgment of 12 August 2008 (Interpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs) para. 41. 110 UN Doc. CCPR/C/95/D/1457/2006 (27 March 2009). See also Länsman et  al. v. Finland, UN Doc. CCPR/C/52/D/511/1992 (8 November 1994). 111 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 21, Right of Everyone to Take Part in Cultural Life, 21 December 2009, UN Doc. E/C.12/GC/21, para. 55(e), at www.refworld.org/docid/4ed35bae2.html (accessed 20 September 2015). 112 Centre for Minority Rights Development (Kenya) v. Kenya, African Commission on Human and Peoples’ Rights 276/2003 (4 February 2010) para. 291. 113 See, for example, Constitutional Court of Bolivia, Case 2003/2010-R of 25 October 2010 (section III.5); Constitutional Court of Colombia, Case T-769/09 of 29 October 2009, 108 109

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40  The legal content of the UNDRIP In sum, the Declaration endorses a unique and remarkably strong model of participatory rights, notably one which, underpinned by the principle of FPIC, accepts that indigenous peoples may have the right to withhold their consent with regard to certain governmental projects affecting their lands. The progressive interpretation of FPIC discussed in this section is aimed at protecting the rights, cultures and, ultimately, lives of indigenous peoples, and can only be overridden in accordance with the restrictive content of Article 46(2) of the Declaration.114 It follows that the principle of FPIC has the potential to reverse a tradition of injustice and discrimination by preventing States’ interests from systematically and indiscriminately prevailing over those of indigenous peoples.

6.  Conclusions While the majority of observers have welcomed the UNDRIP as a positive development that promises to bring justice to indigenous peoples, some have more pessimistically criticised it for not going far enough in protecting and promoting the rights of indigenous peoples. This divergence in views is particularly relevant for the central question addressed in the first part of this book, namely whether international law has provided, through the UNDRIP, a valid response to the demands for justice of indigenous peoples. What, then, are the real significance and implications of the Declaration for indigenous peoples? Is the UNDRIP a truly historic achievement for the world’s indigenous peoples as most authors have suggested? Or are its provisions ultimately too unambitious to contribute to the effective re-empowerment of these groups? As discussed in the first part of the chapter, the general traits of the Declaration’s legal framework provide a first indication of the instrument’s potential to effectively protect and promote the rights of indigenous peoples. For example, the centrality of the principle of equality in the genesis and structure of the Declaration underlines the instrument’s attempt to reverse a tradition of discrimination against these peoples in international law. The Declaration’s general approach to human rights is also worth noting. At one level, the UNDRIP fully subscribes to the principle of indivisibility, section 5, and Case T-129 of 3 March 2011, section 7.1; Supreme Court of Belize, Claim No. 394 of 2013, Decision of 3 April 2014; Delgamuukw v. British Columbia [1977] 3 SCR 1010; Haida Nation v. British Columbia (Minister of Forests) [2004] 3 SCR 511; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69, [2005] 3 SCR 388; and Tsilhqot’in Nation v. British Columbia 2014 SCC 44. 114 Article 46(2) reads as follows: ‘The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.’

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The legal content of the UNDRIP 41 interdependence and interrelation of all human rights, be they civil and political or economic, social and cultural rights; at another, it validates the collective dimension of indigenous rights in accordance with indigenous peoples’ traditions, without, however, challenging the significance of individual rights in the international legal system. This progressive approach contributes not only to the effective protection of indigenous peoples as traditionally marginalised and oppressed groups but also to the effective realisation of many individual rights of members of indigenous communities. The breadth of the provisions of the Declaration, which deal, inter alia, with self-determination, lands and natural resources, political participation, culture, religion, education, development, intellectual property and access to justice, represents a further positive aspect of the instrument. All that said, the success of the Declaration and, in turn, of the indigenous peoples’ struggle for justice will largely depend on the actual interpretation and, ultimately, the implementation of three specific sets of provisions, namely those concerning the right to self-determination, land rights and participatory rights. These provisions are key to the re-affirmation of indigenous peoples’ human rights and dignity and, in turn, their survival as distinct societies. Due to the far-reaching implications of these rights, States sought to limit their actual meaning and scope in an attempt to protect their own political and economic interests. For this reason, the second part of the chapter has examined the legal outcomes of this important diplomatic process with a view to providing a realistic assessment of the overall value of the Declaration for indigenous peoples. The discussions in this chapter have revealed that States were not able to impose their own views on the key provisions of the UNDRIP and that, contextually, indigenous peoples did not have to give up their fundamental claims in exchange for support of the Declaration. In fact, States engaged in a process of discussions and disagreements with indigenous peoples,115 ultimately accepting solutions which they had initially opposed.116 Under these circumstances, the compromises reached on the key provisions

J. Habermas, ‘On Law and Disagreement. Some Comments on Interpretative Pluralism’ (2003) 16 Ratio Juris pp. 187–194. 116 One point could be added here. While it goes without saying that official governmental statements should be taken with a pinch of salt, the fact that several States described the direct involvement of indigenous peoples as a prerequisite for the successful completion of the drafting of the Declaration is not without significance. See, for example, the statements of the representatives of Denmark, Canada, Norway, Chile, Sweden, the USA, Colombia and the Russian Federation at the Second Session of the Working Group on the Draft Declaration, UN Doc. E/CN.4/1997/102 (10 December 1996) paras. 23–34. On another occasion, the representative of Austria, speaking on behalf of EU countries, commented that indigenous peoples took part in the drafting of the Declaration ‘on an equal footing with States’. Statement of the Representative of Austria Speaking on Behalf of the EU, Human Rights Council, Geneva, 27 June 2006, at www.eu2006.at/en/News/ Statements_in_International_Organisations/UN/2706IndigenousPeoples.html (accessed 20 September 2015). 115

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42  The legal content of the UNDRIP of the UNDRIP should not be seen as a sign of weakness; rather, they should be assessed on the basis of their actual implications for indigenous peoples. Accordingly, this chapter has shown that the final language of the provisions on self-determination, land rights and participatory rights has accommodated to a significant extent the initial claims of indigenous peoples.117 Thus, Article 3 on self-determination remains a fundamental provision with important political and legal implications for indigenous peoples, despite the last-minute inclusion of Article 46(1). In a similar fashion, the land rights provisions offer substantive protection to the special relationship that indigenous peoples have with their territories. Equally importantly, the way in which Article 32 ultimately defines FPIC imposes significant obligations on States, which, in the absence of the consent of the indigenous peoples concerned, may well be prevented from implementing certain decisions affecting the latter’s ancestral lands. This chapter has also shown that these provisions have broken new ground in their relevant areas, a circumstance which fully confirms their particularly strong and ambitious nature. No less importantly, there is also evidence to suggest that these complex provisions can work in practice despite the inevitable difficulties surrounding their effective realisation. In particular, international and regional human rights bodies have constructively engaged with the question of land rights and FPIC, providing important guidance for the implementation of the respective provisions at the national level. In light of the above, it can be said that the Declaration represents a truly innovative and progressive instrument that has the capacity to contribute to re-empower indigenous peoples in accordance with the latter’s aspirations. Before concluding that international law has responded fairly and adequately to the demands for justice of indigenous peoples, however, it is necessary to discuss another aspect of the Declaration that, at first sight, may appear hardly reconcilable with the portrait of the UNDRIP as an instrument of justice, that is, its legal status. This will be the object of examination of the next chapter.

It should also be noted that a clear majority of indigenous representatives supported the final text of the Declaration. In particular, all the regional caucuses of the global indigenous movement agreed to support the final text of the UNDRIP. See ‘Report of the Global Indigenous Peoples’ Caucus Steering Committee’, 31 August 2007, at www.fns.bc.ca/pdf/ IndigenousPeoplesSept407.pdf (accessed 20 September 2015).

117

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3 The legal status of the United Nations Declaration on the Rights of Indigenous Peoples*

1.  Introduction This chapter complements the analysis of Chapter  2, which was aimed at assessing whether international law has provided a valid response to the claims and concerns of indigenous peoples, by examining the legal value and effects of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration). This is an important question because, being adopted by means of a resolution of the United Nations (UN) General Assembly, the Declaration belongs to what is normally referred to in international law as soft law.1 As the latter is not a recognised source of international law,2 States are under no legal obligation to comply with the provisions of soft law instruments, including, crucially, those of the Declaration. Can this

*  Chapter 3 draws upon material from Mauro Barelli, ‘The Role of Soft Law in the International Legal System: The Case of the UN Declaration on the Rights of Indigenous Peoples’ (2009) 58 International and Comparative Law Quarterly pp. 957–983, © British Institute of International and Comparative Law, published by Cambridge University Press, reproduced with permission. It should be noted that certain General Assembly Resolutions, i.e. those referred to in Article 17 of the UN Charter, are binding upon the organs and members States of the UN. See M. Shaw, International Law (7th edn, Cambridge University Press 2014) p. 881. On soft law generally, see A. Boyle, ‘Soft Law in International Law-Making’ in M. Evans (ed.), International Law (4th edn, Oxford University Press 2014) pp. 118–136; and C. Chinkin, ‘The Challenge of Soft Law:  Development and Change in International Law’ (1989) 38 International & Comparative Law Quarterly pp. 850–866. For a critical view of soft law, see J. Klabbers, ‘The Undesirability of Soft Law’ (1998) 67 Nordic Journal of International Law pp. 381–391. 2 Article 38(1) of the Statute of the International Court of Justice is conventionally understood to reflect the formal sources of international law. It reads as follows: ‘The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. … judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.’ Statute of the International Court of Justice, 15 UNCIO 355 (26 June 1945). 1

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44  The legal status of the UNDRIP circumstance negatively affect the potential of the UNDRIP to effectively protect and promote the rights of indigenous peoples? Not surprisingly, the question of the legal value of the UNDRIP has sparked an important debate among academics. Some scholars have been rather cautious in assessing the legal character and implications of this instrument, describing it as a highly persuasive tool to be utilised in domestic political contests.3 Others have taken a very different position, suggesting that several provisions of the Declaration already correspond to rules of customary international law,4 a circumstance which would make them legally binding on States.5 This debate is particularly important because legal obligations tend to both produce greater expectations of conforming behaviour and carry more serious consequences for non-compliance.6 For this reason, S. Allen, ‘The UN Declaration on the Rights of Indigenous Peoples and the Limits of the International Legal Project’ in S. Allen and A. Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart 2011) pp. 225–258, at p. 225. 4 See, for example, J.  Anaya and S.  Wiessner, ‘The UN Declaration on the Rights of Indigenous Peoples:  Towards Re-empowerment’ Jurist (3 October 2007), at http://jurist. org/forum/2007/10/un-declaration-on-rights-of-indigenous.php (accessed 20 September 2015); and International Law Association, ‘The Rights of Indigenous Peoples, Interim Report’, The Hague Conference, 2010, pp.  51–52, at www.ila-hq.org/en/committees/ index.cfm/cid/1024 (accessed 20 September 2015). 5 Custom is a formally recognised source of international law as established by Article 38(1) of the Statute of the International Court of Justice. States have a legal obligation under international law to comply with norms of customary law and failure to do so would normally entail international responsibility. Furthermore, several constitutions automatically recognise customary international law as part of domestic law. Accordingly, if some provisions of the Declaration acquired customary status, some national courts could rely directly on them in determining whether States have complied with their legal obligations towards indigenous peoples. Evidently, the above scenario would have positive repercussions for indigenous peoples. However, it is debatable whether any right defined in the Declaration fully meets the strict requirements established by international law for a norm to acquire customary status, namely a widespread and consistent practice among States, on the one hand, and ‘the conviction that this practice is rendered obligatory by the existence of a rule of law requiring it’, on the other. See North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3, para. 77. For a discussion of the difficulties in associating parts of the Declaration with customary international law, see Allen, ‘The UN Declaration on the Rights of Indigenous Peoples’, supra note 3; and A. Xanthaki, ‘Indigenous Rights in International Law over the Last 10 Years and Future Developments’ (2009) 10 Melbourne Journal of International Law pp. 27–37. For a more general discussion of the difficulties in establishing the existence of a norm of customary international law in the field of human rights, see B. Simma and P. Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1998) 12 Australian Yearbook of International Law pp. 82–108. In a particularly instructive passage, Simma and Alston note that in order to make a compelling case for the existence of a norm of customary law, one would need to answer the fundamental question as to whether ‘we are in the presence of a case where customary law has been gradually built up, through State practice of the traditional material kind and where subsequent instances of inconsistent conduct occur, or whether claims to the existence of a rule of customary law are voiced amidst – or against – a real world which all too often continues to behave as if it were totally unimpressed by such claims’ (at p. 97). 6 For a comprehensive discussion, see D. Shelton (ed.), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (Oxford University Press 2000). On 3

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The legal status of the UNDRIP 45 the vision of the Declaration as non-legally binding evokes fears of ineffectiveness, with potentially negative consequences for its overall significance for indigenous peoples. Against this background, this chapter will posit that the soft law nature of the UNDRIP should not generate unwarranted anxieties. In the context of the growing importance of non-legally binding instruments in the international legal system, it will submit that the UNDRIP represents a highly influential international legal instrument that can both generate realistic expectations of complying behaviour and produce important legal effects. In order to develop this argument, the chapter will, first, introduce the concept of soft law in international law and will then proceed to examine some of the distinguishing characteristics of the Declaration that have arguably enhanced its authoritativeness and legitimacy,7 with important implications for its capacity to affect State behaviour. It will then present an overview of the supportive international setting within which the Declaration operates and will provide some examples of how the UNDRIP could influence, either directly or indirectly, judicial decisions at both the regional and national levels.

2.  The role of soft law in the international legal system Speaking in explanation of their respective votes on the day of the adoption of the Declaration, several States were quick to highlight the non-legally binding nature of the instrument. For example, the US delegate noted that it was the clear intention of all States that the Declaration would ‘be an aspirational [text] with political and moral, rather than legal, force’.8 The representative of Australia echoed this position, adding that the UNDRIP contains ‘recommendations regarding how States could promote the welfare of indigenous peoples, but [is] not in itself legally binding’.9 The representative of another country with a significant indigenous population, i.e. Canada, more emphatically stressed that the other hand, it should be noted that the virtues of (international) hard law are often contingent on contexts and circumstances. For example, a State may decide to ratify a particular human rights treaty in the absence of a genuine interest in fully complying with the relevant provisions. Even when States subscribe to human rights treaties because they are committed, in principle, to certain objectives and values, their typical reluctance to design strong monitoring mechanisms may cause one to question the authenticity of their intentions. Moreover, by entering reservations on fundamental provisions, States may limit significantly their legal obligations under a specific treaty. On the question of reservations to human rights treaties, see I. Ziemele and L. Liede, ‘Reservations to Human Rights Treaties: From Draft Guideline 3.1.12 to Guideline 3.1.5.6’ (2013) 24 European Journal of International Law pp. 1135–1152. 7 On the authoritativeness and legitimacy of the Declaration see also J. Anaya, Indigenous Peoples in International Law (2nd edn, Oxford University Press 2004) p. 65. 8 Explanation of vote by Robert Hagen, US Adviser, on the Declaration on the Rights of Indigenous Peoples, to the UN General Assembly, with Annex: Observations of the United States with respect to the Declaration on the Rights of Indigenous Peoples, USUN Press Release # 204(07), 13 September 2007. 9 See www.un.org/News/Press/docs/2007/ga10612.doc.htm (accessed 20 September 2015).

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46  The legal status of the UNDRIP ‘the Declaration [is] not legally binding and [has] no legal effect in Canada’.10 The USA, Australia and Canada, together with New Zealand, were the only States that voted against the UNDRIP at the General Assembly. That said, even States which abstained, such as Colombia, or voted in favour of the UNDRIP, such as the UK, Turkey, Norway and Guyana, all made similar statements.11 These pronouncements served as strong reminders of what some would describe as the inherent limit of the Declaration, that is, its lack of binding force accompanied by a perceived restricted capacity to affect State behaviour. Indeed, if States could simply dismiss the Declaration as non-law and ignore its provisions altogether, how could one praise the instrument’s capacity to respond to the needs and concerns of indigenous peoples? In reality, to say that the Declaration is not legally binding is not tantamount to dismissing its overall (legal) value and potential. Soft law cannot and should not be simply dismissed as non-law, for two main reasons. First, under the complexity and dynamism of contemporary international law-making, international standards may well emerge as a result of the interplay between different instruments, regardless of their nature.12 It follows that special attention should be paid to the relationship between soft law and existing hard law. Second, the category of soft law includes a variety of instruments such as inter-State conference declarations, UN General Assembly resolutions, codes of conduct, guidelines and the recommendations of international organisations. It is therefore clear that various soft law instruments will have different legal significance. This assertion goes far beyond the limited formal aspect of the instrument concerned. More importantly, it refers to, inter alia, the different contexts within which an instrument is adopted, the circumstances which have led to its establishment, its very normative content and the institutional setting within which it exists. It follows that while some soft law instruments may be regarded as mere aspirational texts, other may become relatively or even highly influential in their respective areas of concern.

3.  The Declaration’s potential to generate State compliance Among the authors who have discussed the factors affecting State compliance with soft law, there exists substantial convergence on three paramount Ibid. Ibid. 12 Indeed, Shelton observed that soft law and hard law are connected and intertwined to such an extent that sometimes it may be difficult to draw clear-cutting distinctions between the two. For example, soft law instruments may have a specific normative content that is actually ‘harder’ than certain ‘soft’ obligations included in some treaties and, equally importantly, non-binding instruments may provide for supervisory mechanisms characteristic of hard law texts. See D.  Shelton, ‘Law, Non-law and the Problem of “Soft Law” ’ in Shelton (ed.), Commitment and Compliance, supra note 6, pp. 1–20, at p. 10. 10 11

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The legal status of the UNDRIP 47 themes, namely context, content and institutional setting.13 Accordingly, the following sections will assess the Declaration’s potential to generate State compliance on the basis of:  first, the circumstances, and in particular the degree of consensus, which surrounded its drafting and adoption; second, its normative content and particularly its relationship with existing or emerging hard law; and, third, the existence, and effectiveness, of international follow-up mechanisms capable of generating significant pressure towards compliance. 3.1  The drafting history Three key features of the Declaration’s drafting history have contributed to strengthening its authoritativeness and legitimacy, with important consequences for its capacity to affect State behaviour. First, the Declaration is one of the most extensively discussed and negotiated texts in the history of the UN.14 In this respect, it is useful to briefly recapitulate the key passages of the negotiation process that led to its adoption. The body that initiated the process was the Working Group on Indigenous Populations (WGIP), created in the early 1980s as a subsidiary body of the Sub-Commission on the Promotion and Protection of Human Rights (Sub-Commission) with the task of reviewing normative developments pertaining to the human rights of indigenous peoples.15 The WGIP, composed of five independent experts, held annual sessions at the UN Headquarters in Geneva, which were open to both States’ delegates and indigenous representatives. It successfully pushed indigenous issues onto the UN human rights agenda, laying the ground for future important developments. In particular, in 1985, the Sub-Commission approved the decision of the WGIP to draft a declaration on the rights of indigenous peoples.16 The first draft of the declaration was completed by the WGIP in 1993 and was approved a year later by the Sub-Commission.17 This draft was essentially the product of indigenous representatives and the five

See, among others, G. Abi-Saab, ‘Cours General de Droit International Public’ (1987) 207 Recueil des Cours de l’Academie de Droit International pp. 160 and 161; Shelton, ‘Law, Non-law and the Problem of “Soft Law” ’, supra note 6, pp. 13–17; G. Lande, ‘The Changing Effectiveness of General Assembly Resolutions’ (1964) 58 American Society of International Law Proceedings of the Annual Meeting pp. 162–170; and M. Ellis, ‘The New International Economic Order and General Assembly Resolutions: The Debate over the Legal Effects of General Assembly Resolutions Revisited’ (1985) 15 California Western International Law Journal pp. 647–704. 14 ‘UN Forum Chairperson Decries Delay in Adopting Declaration on Indigenous Rights’, 12 December 2006, at www.un.org/apps/news/story.asp?NewsID=20959&Cr=indigenous (accessed 20 September 2015). 15 UN Economic and Social Council Resolution 1982/34 of 7 May 1982. 16 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities Resolution 1985/22 of 29 August 1985. 17 UN Doc. E/CN.4/Sub.2/1994/2.Add.1 (20 April 1994). 13

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48  The legal status of the UNDRIP independent experts of the WGIP. States chose not to participate intensively in early negotiations because they considered that their interests would be better protected at the level of the then Commission on Human Rights, where, in the words of the then Australian Minister for Aboriginal Affairs, ‘indigenous voices were not expected to be heard with such strength and determination and where governments had in the past dictated the agenda free of non-governmental interference’.18 As anticipated, when the draft declaration was submitted to the Commission on Human Rights for its approval, several States expressed their concerns about the radical content of the text. Provisions such as those on the right to self-determination and the right to own and control ancestral lands came into collision with States’ economic and political interests. Equally importantly, the insistence on the collective dimension of indigenous rights clashed with the Western individualistic conception of human rights that traditionally dominated the human rights system. Given these premises, the Commission on Human Rights decided to set up a subsidiary organ, namely the Working Group on the Draft Declaration (WGDD), with the sole purpose of further elaborating the text of the draft declaration.19 The following negotiations, as seen in Chapter 2, proved particularly complex due to the far-reaching demands advanced by indigenous peoples and the reluctance of States to accommodate them. The WGDD took more than ten years to finalise an amended version of the draft declaration and send it to the Human Rights Council, which by then had replaced the Commission on Human Rights.20 After the approval by the Human Rights Council on 26 June 2006,21 the draft declaration could finally reach the General Assembly, where further consultations between States and indigenous peoples resulted in a number of last-minute changes to the text.22 Despite these initial difficulties, the General Assembly succeeded in finally adopting the document R. Tickner, Taking a Stand: Land Rights to Reconciliation (Allen & Unwin 2001) p. 303. Established in 1995 in accordance with Commission on Human Rights Resolution 1995/32 and Economic and Social Council Resolution 1995/32. 20 Report of the Working Group on the Draft Declaration on its Eleventh Session, UN Doc. E/ CN.4/2006/79 (22 March 2006) Conclusions. 21 Draft Declaration on the Rights of Indigenous Peoples, adopted 29 June 2006, Human Rights Council Resolution 2006/2, UN Doc. A/HRC/1/2 (2006). Approved with 30 votes in favour, two against and 12 abstentions. 22 Pursuant to a resolution introduced by Namibia on behalf of the African Group of States, the Third Committee of the General Assembly decided to ‘defer consideration and action on the United Nations Declaration on the Rights of Indigenous Peoples to allow for further consultations thereon’. Namibia: Amendments to Draft Resolution A/C.3/61/L.18/Rev.1, 21 November 2006, A/C.3/61/L.57/Rev.1, adopted by a vote of 82 in favour, 67 against and 25 abstentions. The African position was based on the fact that numerous matters of fundamental political and constitutional concern still needed to be addressed, including the definition of indigenous peoples, self-determination, ownership of land and resources, establishment of distinct political and economic institutions, and national and territorial integrity. See Decision of the African Union Assembly/AU/Dec.141(VIII) of 30 January 2007. 18 19

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The legal status of the UNDRIP 49 on 13 September 2007.23 The period of gestation of the Declaration certainly reflects the complexity of the issues at stake. However, it also indicates that significant efforts were made to produce a document capable of responding to the claims of indigenous peoples while remaining acceptable to States and in accordance with international law. The result of such a major collective effort undoubtedly carries special value.24 This value is further reinforced by the second key feature of the drafting history of the UNDRIP, that is, the exceptional support it received from both States and international institutions. This, in turn, is evidence of the high degree of consensus that surrounded it.25 International support did not come exclusively from those UN human rights bodies directly involved in the production of the Declaration that were mentioned above. The General Assembly, for one, constantly supported this ambitious project. After establishing, in 1993, the First International Decade of the World’s Indigenous People (1995–2004), it encouraged the Commission on Human Rights to consider the draft declaration produced by the Sub-Commission with a view to achieving its final adoption within the decade.26 However, once it realised that this would not be possible, it established the Second International Decade of the World’s Indigenous People (2005–2014) and urged ‘all parties involved in the process of negotiation to do their utmost to … present for adoption as soon as possible a final draft United Nations declaration on the rights of indigenous peoples’.27 Besides the General Assembly, other UN bodies and specialised agencies repeatedly expressed their support for the UNDRIP, contributing to keeping the issue of indigenous peoples at the forefront of the UN human rights agenda.28 References to the UNDRIP were also included in major documents adopted under the auspices of the UN. In 1993, the World Conference on Human For a more detailed analysis of the history of the Declaration, see S. Errico, ‘The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview’ and ‘The UN Declaration on the Rights of Indigenous Peoples is Adopted: An Overview’ (2007) 7 Human Rights Law Review pp. 741–759. 24 It should also be noted that during the initial sessions of the Working Group on the Draft Declaration, indigenous representatives adopted a ‘no change policy’, which resulted in the rejection of any suggestions for amendment to the text of the draft declaration. This also contributed to the delay. See M. Davis, ‘Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples’ (2008) 9 Melbourne Journal of International Law pp. 439–472. 25 Here consensus should be understood as an ‘overwhelming majority’ or a ‘convergence of international opinion’, and should not be confused with the circumstances under which no vote on a resolution is requested for its very adoption. 26 UN General Assembly Resolution 49/214 of 23 December 1994. 27 UN General Assembly Resolution 59/174 of 20 December 2004, para. 12. 28 See, for example, the various documents that have been regularly submitted by UN organisations at each session of the Permanent Forum on Indigenous Issues, at www.un.org/esa/ socdev/unpfii/index.html (accessed 20 September 2015). 23

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50  The legal status of the UNDRIP Rights called on the WGIP to complete the drafting of the declaration and recommended that the Commission on Human Rights consider the renewal and updating of its mandate upon the completion of such drafting.29 Similarly, the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance called upon States to conclude negotiations on and approve the text of the draft declaration as soon as possible.30 Finally, special consideration should be given to the 2005 World Summit, notably one of the largest gatherings of world leaders in the history of the UN. The document adopted at the end of this Summit, and included in General Assembly Resolution 60/1, re-affirmed the commitment of the international community to adopt a declaration on the rights of indigenous peoples before the end of the Second International Decade of the World’s Indigenous People.31 The international support for the Declaration did not end after its adoption. In particular, in 2010 the General Assembly decided to organise a high-level plenary meeting, known as the World Conference on Indigenous Peoples, in order to share perspectives and best practices on the realisation of the rights and principles included in the UNDRIP.32 The Conference, the first of this kind organised by the UN, was held in September 2014 and resulted in an action-oriented outcome document which was prepared after consultation with indigenous peoples.33 State support for the Declaration was also remarkable. One hundred and forty-three States voted in favour of the UNDRIP at the General Assembly, while the only four countries that had voted against it, namely the US, Canada, Australia and New Zealand, have all subsequently revisited their position.34 It follows that today the Declaration enjoys virtually universal support in the international community.35 Moreover, the statements of governments’ representatives during the sessions of the WGDD suggest the existence of a strong convergence on the underlying principles of the Declaration. Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23 (12 July 1993) paras. 28 and 29. 30 Durban Declaration and Programme of Action, adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, South Africa, 31 August–8 September 2001, para. 206. 31 2005 World Summit Outcome, included in UN General Assembly Resolution 60/1 of 16 September 2005, para. 105. More generally, it is remarkable that, while pledging to take action on crucial global issues such as sustainable development, terrorism, peace-building and human rights, the final document also refers in several circumstances to the issue of indigenous peoples. See para. 127. 32 UN General Assembly Resolution 65/198 of 21 December 2010. 33 Outcome Document of the High-level Plenary Meeting of the General Assembly known as the World Conference on Indigenous Peoples, Resolution adopted by the General Assembly on 25 September 2014. 34 The official endorsing statements can be found, respectively, at www.state.gov/documents/ organization/184099.pdf, www.un.org/esa/socdev/unpfii/documents/Australia_official_ statement_endorsement_UNDRIP.pdf and www.beehive.govt.nz/release/supporting-un -declaration-restores-nz039s-mana (accessed 20 September 2015). 35 Among the 11 States that had abstained on the occasion of the vote on the UNDRIP (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, the Russian 29

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The legal status of the UNDRIP 51 The third distinguishing characteristic of the drafting process of the UNDRIP has been the direct, large and effective participation of indigenous peoples’ representatives. Indigenous organisations were allowed to participate in the sessions of both the WGIP and WGDD regardless of their consultative status with the Economic and Social Council (ECOSOC), notably an uncommon circumstance for UN standards. The first Chairman of the WGIP, Asbjørn Eide, made this historical decision. At the time of its creation, many indigenous peoples wanted to attend the sessions of the WGIP, but standard UN rules prevented it. Only specific categories of observers are normally entitled to participate in the sessions of working groups, namely representatives of governments, specialised agencies and regional international organisations, on the one hand, and representatives of non-governmental organisations (NGOs) that have obtained consultative status by the ECOSOC, on the other. However, given that the WGIP was entrusted to review developments and evolving standards concerning the promotion and protection of indigenous peoples’ rights,36 Eide was convinced that indigenous representatives would positively contribute to the group’s activities and, accordingly, decided to relax the traditional UN rules concerning participation. Although this decision was not unanimously welcomed, it was fully supported by the then Director of the UN Centre for Human Rights, Theo van Boven, and eventually received the green light.37 This open approach also characterised the sessions of the WGDD. In the resolution that established this working group, the ECOSOC ‘invite[ed] applications from organisations of indigenous people not in consultative status with the Economic and Social Council that are interested in participating in the Working Group’. These organisations had to apply to the Coordinator of the International Decade of the World’s Indigenous People in order to participate in the sessions.38 Although States had to be consulted before accrediting their participation, their consent was not required, and ultimately a large number of indigenous organisations attended the relevant sessions. Indeed, in terms of the scale of indigenous peoples’ participation, it has been observed that: [While] there are other examples of international law-making that include substantial non-governmental participation, such as those relating to Federation, Samoa and Ukraine), two, Colombia and Samoa, have also now endorsed the instrument. See Statement of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya, to the Expert Mechanism on the Rights of Indigenous Peoples (15 July 2010) at http://unsr.jamesanaya.org/statements/ statement-on-the-united-nations-declaration-on-the-rights-of-indigenous-peoples-tothe-emrip (accessed 20 September 2015). 36 UN Economic and Social Council Resolution 1982/34. 37 A. Eide, ‘Rights of Indigenous Peoples: Achievement in International Law during the Last Quarter of a Century’ (2006) 37 Netherlands Yearbook of International Law pp. 155–212, pp. 161 and 162. 38 UN Economic and Social Council Resolution 1995/32.

52  The legal status of the UNDRIP

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the (1990) Convention on the Rights of the Child and the (2008) Convention on the Rights of Persons with Disabilities … there has never been such a diverse and geographical broad-based participation of beneficiaries of the rights as proved to be the case with the Declaration.39 From a procedural perspective, Xanthaki has further noted that during the negotiations indigenous peoples were given the floor as much as States and could take part in informal consultations with governmental representatives. Moreover, their proposals were duly included in the annual reports to the then Human Rights Commission.40 The fact that indigenous peoples were able to play such a direct and active role in the drafting of the Declaration has special implications for the overall value of the instrument. Boyle and Chinkin have observed that ‘as international law impacts more often and directly upon individuals it becomes more important that it is seen as legitimate to a broader based community’.41 One of the most effective ways to achieve such a result is for international law to include its subjects in the actual determination of its content.42 Thus, ‘popular participation’ in law-making processes should be increasingly promoted, because doing so would crucially enhance the legitimacy of the relevant instruments.43 The way in which indigenous peoples participated in the negotiations on the UNDRIP will be specifically analysed in Chapter 5. Here it suffices to note that indigenous delegates did not merely participate in the sessions of the WGIP and WGDD, but, as already highlighted in Chapter 2, did so in such an efficient manner that States were prevented from imposing their own views even on the most important provisions of the UNDRIP. 3.2  The relationship between the Declaration and existing/ emerging law Evidently, soft law instruments that are related to existing law or principles of law, or reflect existing or emerging international law standards, create a stronger expectation of compliance. It is therefore important to highlight that

J. Burger, ‘The UN Declaration on the Rights of Indigenous Peoples:  From Advocacy to Implementation’ in Allen and Xanathaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples, supra note 3, pp. 41–60, at p. 42. 40 A Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (Cambridge University Press 2007) p. 103. 41 A. Boyle and C. Chinkin, The Making of International Law (Oxford University Press 2007) p. 58. 42 C. Charters, ‘The Legitimacy of the UN Declaration on the Rights of Indigenous Peoples’ in C. Charters and R. Stavenhagen, Making the Declaration Work: The UN Declaration on the Rights of Indigenous Peoples (IWGIA 2009) pp. 280–303, at p. 285. 43 R. Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (Routledge 2000) pp. 62 and 63. See also R. Falk, ‘What Comes after Westphalia:  The Democratic Challenge’ (2007) 13 Widener Law Review pp. 243–254. 39

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The legal status of the UNDRIP 53 there is a strong connection between the content of the UNDRIP and existing law. Several rights enshrined in the Declaration have already been accepted both under general international law, e.g. the right not to be subjected to any act of genocide (Article 7), and the minority rights regime, e.g. the right of a group to practise its own cultural traditions (Article 11), the right to manifest and practise its own religion (Article 12) and the right to public participation (Article 18). The same logic applies to more controversial provisions such as those on land rights. As discussed in Chapter 2, the Declaration recognises and protects the special relationship existing between indigenous peoples and their lands, which is a fundamental aspect of any indigenous culture. Article 25, in particular, recognises the right of indigenous peoples ‘to maintain and strengthen their distinctive spiritual relationship’ with their lands, while Article 26 establishes the right of indigenous peoples to own, use, develop and control the lands, territories and resources that they possess. Crucially, a number of international treaties also recognise and protect these rights.44 Thus, several provisions of the 1989 International Labour Convention concerning Indigenous and Tribal Peoples in Independent Countries recognise important land rights to indigenous peoples, including Article 14, which affirms that ‘the rights [of indigenous peoples] of ownership and possession … over the lands which they traditionally occupy shall be recognised’, and Article 15, which provides that the rights of indigenous peoples ‘to the natural resources pertaining to their lands shall be specially safeguarded’.45 In addition, a number of key international instruments produced in the area of international environmental law demand that the spiritual relationship existing between indigenous peoples and their lands be respected. These instruments recognise the important contribution of indigenous peoples to sustainable development, and call for the protection of their traditional cultures and lifestyles, which, notably, are based on the ownership and possession of their traditional lands. The 1992 Biodiversity Convention, for example, establishes that each contracting party shall ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity’.46 Similarly, the 1992 Rio Declaration recognises the vital role of indigenous people with respect to environmental management and development, and accordingly demands that States recognise and duly support their identity, culture and interests, and enable their effective participation in the achievement of sustainable development.47 As discussed

Although they do so less ambitiously and less comprehensively than the Declaration does. ILO Convention No. 169 of 1989 Concerning Indigenous and Tribal Peoples in Independent Countries, at www.ilo.org/public/english/indigenous (accessed 20 September 2015). 46 1992 Convention on Biological Diversity, Article 8(j), 31 ILM 818 (1992). 47 The Rio Declaration on Environment and Development (14 June 1992), Principle 11, 31 ILM 874 (1992). Although non-legally binding, the Rio Declaration has been described as ‘the most significant universally endorsed statement of general rights and obligations of States 44 45

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54  The legal status of the UNDRIP in Chapter  2, further support for the principle whereby the land rights of indigenous peoples must be adequately protected in order to protect the fundamental human rights of these peoples has also come from various human rights treaty bodies, especially the Human Rights Committee (HRC) and the Committee on the Elimination of Racial Discrimination (CERD). It is true, however, that the UNDRIP has not simply recognised existing law. Some of its provisions have gone beyond existing and formally articulated legal standards, including those on self-determination and participation that have been discussed in Chapter 2. Yet, even in such cases, it cannot be said that the UNDRIP is disconnected, let alone incompatible, with existing norms of, generally, international law, and, specifically, human rights law. In stretching some legal standards, the Declaration has built on the practice of various judicial and quasi-judicial bodies, thus guaranteeing a coherent development of the relevant normative framework. With regard to self-determination, for example, the HRC has traditionally requested that States report their policies and laws concerning indigenous peoples under Article 1 of the International Covenant on Civil and Political Rights (ICCPR), that is, the article affirming the right of all peoples to self-determination.48 It is also significant that express support for the recognition of the right to self-determination to indigenous peoples has come from the African Commission on Human and Peoples’ Rights.49 In a similar way, the final inclusion in the Declaration of a number of provisions on free, prior and informed consent (FPIC) have followed a visible trend in the jurisprudence of human rights bodies aimed at guaranteeing the effective participation of indigenous peoples in decisions affecting them. In other words, the articles of the Declaration that have expanded existing law have done so in accordance with the ongoing evolution of the respective legal standards and with a view to responding to a number of important claims of indigenous peoples that had yet to be adequately addressed within the international human rights framework.

affecting the environment’. P. Birnie, A. Boyle and C. Redgwell, International Law and the Environment (3rd edn, Oxford University Press 2009) p. 119. 48 See, for example, the following concluding observations: Canada (UN Doc. CCPR/C/79/ Add.105 (1999)); Mexico (UN Doc. CCPR/C/79/Add.109 (1999)); Norway (UN Doc. CCPR/c/79/Add.112 (1999)); Australia (UN Doc. CCPR/CO/69/AUS (2000)); Denmark (UN Doc. CCPR/CO/70/ DNK (2000)); Sweden (UN Doc. CCPR/CO/74/ SWE (2002)); Finland (UN Doc. CCPR/CO/82/FIN (2004)); the USA (CCPR/C/ USA/Q/3/Rev.1 (2006)). 49 The African Commission on Human and Peoples’ Rights affirmed that ‘the notion of self-determination has evolved with the development of the international visibility of the claims made by indigenous populations whose right to self-determination is exercised within the standards and according to the modalities which are compatible with the territorial integrity of the Nation States to which they belong’. 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 African Commission on Human and Peoples’ Rights at its 41st ordinary session in May 2007 held in Accra, Ghana, 2007.

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The legal status of the UNDRIP 55 All the above suggests that there exists a solid relationship between the content of the UNDRIP and the norms, standards and principles related to indigenous peoples that have recently emerged at the international level. Far from being detached from legal reality, the Declaration embodies applicable international human rights standards as well as important legal principles. Furthermore, some of its provisions directly reflect the content of existing international treaties, while others are in line with the recent practice of various human rights treaties bodies. Crucially, this strengthens the perception of the UNDRIP as an authoritative and legitimate document, and has important implications for the overall legal significance of the instrument. 3.3  The international institutional setting In order to assess the overall potential of the Declaration to affect State behaviour, it is also important to consider the existence of international follow-up mechanisms capable of generating pressure towards compliance. Human rights treaties typically create monitoring bodies to fulfil such a function. For example, the HRC and the CERD are mandated to monitor State parties’ compliance with the provisions of, respectively, the ICCPR and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). No comparable bodies exist in connection to a soft law instrument such as the UNDRIP.50 That said, a number of institutional mechanisms exist that can both promote and monitor compliance with the UNDRIP, thus moving the relevant international setting closer to that of a hard law instrument. These mechanisms include two different sets of organs: on the one hand, special bodies created to deal exclusively with indigenous peoples’ rights and, on the other, generic bodies that may address indigenous issues as part of their broader mandates. A  further distinction refers to the nature of these bodies, which may be either political or judicial. While the very existence of these organs is important to promote the rights of indigenous peoples on the international scene, the following discussion will focus on these bodies’ actual inclination to use the Declaration as a reference point for their respective activities. It is submitted that the way in which these bodies have approached and continue to approach the question of the legal significance of the Declaration is influenced precisely by their perception of

However, it should be noted that indigenous peoples have recently requested the creation of a body which would be entrusted ‘to promote, protect, monitor, review and report on the implementation of the rights of Indigenous Peoples, including but not limited to those affirmed in the Declaration’. See in particular, Alta Outcome Document, Global Indigenous Preparatory Conference for the United Nations High Level Plenary Meeting of the General Assembly to be known as the World Conference on Indigenous Peoples, 10–12 June 2013, Alta, p.  4, at www.iwgia.org/iwgia_files_news_files/0805_Adopted_Alta_outcome_document_ith_logo_ENG.pdf (accessed 20 September 2015).

50

56  The legal status of the UNDRIP the authoritativeness and legitimacy of the document, as was discussed in the previous sections.

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UN bodies and specialised agencies As discussed in Chapter 2, Article 42 of the UNDRIP affirms that UN bodies and specialised agencies should have a primary role in promoting respect for and full application of the Declaration’s provisions. It goes without saying that not all UN bodies and agencies will be in a position to do so. Besides the issue of competence, it should also be stressed that certain (political) organs are simply too politicised to take significant actions in critical areas such as that of human rights. That said, the existence of a political commitment within the UN system to promote compliance with the UNDRIP is crucial for the instrument’s prospect of success. In this respect, a problem may arise as a result of the large number and variety of UN bodies and agencies directly or indirectly dealing with indigenous issues. More precisely, the risk exists that a lack of coordination may have negative effects on the overall impact of their activities. To alleviate the problem, the UN Permanent Forum on Indigenous Issues (the Forum) was established with the role of, inter alia, promoting the integration and coordination of activities related to indigenous issues within the UN.51 The Forum serves as an advisory body to the ECOSOC with a mandate to discuss indigenous issues relating to economic and social development, culture, the environment, education, health and human rights. In addition to its coordinative function, it provides expert advice and recommendations on indigenous issues to the ECOSOC and other UN agencies. The Forum not only promotes an integrated approach among UN bodies based on the content of the UNDRIP, but is also committed to ensure the effective implementation of the provisions included in this document. However, its activities, especially in light of its broad mandate, cannot in themselves ensure an effective follow-up mechanism, particularly with regard to specific issues and contexts. Perhaps the most significant contribution to enhancing compliance with the Declaration has thus far come from the figure of the Special Rapporteur on the Human Rights of Indigenous Peoples. For the purposes of this discussion, it is particularly important that the Special Rapporteur’s mandate includes the ‘promotion of the Declaration as well as other international instruments relevant to the advancement of the rights of indigenous peoples’.52 The function of the Special Rapporteur can be equated to that of a ‘normative intermediary’, that is, ‘a party, authorised by States or [as in this case] an international organisation seeking to promote observance of a norm, who … seeks to induce compliance through a hands-on process

Established by UN Economic and Social Council Resolution 2000/22. UN Doc. A/HRC/6/L.26 (25 September 2007).

51 52

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The legal status of the UNDRIP 57 of communication and persuasion with relevant decision-makers’.53 The Special Rapporteur has in recent years intensified the use of country visits as an instrument to promote compliance with the Declaration. Country visits are missions to selected countries with a view to meeting governmental, indigenous peoples’ and civil society’s representatives, and producing a final report which highlights the main problems connected with the indigenous populations of the concerned States. Importantly, each report includes a number of recommendations, essentially addressed to governments, that the Special Rapporteur considers necessary for the advancement and protection of indigenous peoples’ rights. If country visits provide a valuable occasion to enhance State compliance with the UNDRIP, other activities of the Special Rapporteur generally demonstrate the willingness to couple this promotional role with systematic follow-up activities: first, the introduction of special procedures to monitor the implementation of its recommendations; and, second, as a result of such process, the production of a comprehensive study on the best practices employed by governments and other agencies in implementing these recommendations.54 Another indigenous-specific body created within the UN human rights structure is the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP). This body is mainly tasked with providing the Human Rights Council with thematic advice, in the form of studies and research, on the rights of indigenous peoples.55 Although its original mandate did not include the task of promoting compliance with the UNDRIP, it is evident that the EMRIP has also worked towards that end. During the very first session of the EMRIP, the UN Deputy High Commissioner for Human Rights encouraged the five members ‘to consider how they would contribute to the promotion and implementation of the Declaration’, adding that the provisions contained therein provide ‘an agenda for dialogue and practical policymaking’.56 In a similar vein, the first chairperson of the EMRIP, John Henriksen, noted that the body would play an important role ‘in promoting the operationalization of the rights affirmed in the Declaration and in mainstreaming them into the [Human Rights] Council’s overall efforts to promote and protect all human rights’.57 The EMRIP’s subsequent activities demonstrated that these S. Ratner, ‘Does International Law Matter in Preventing Ethnic Conflict?’ (2000) 32 New York Journal of International Law and Politics pp. 591–698, at p. 668. 54 Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen, Addendum, Study Regarding Best Practices Carried out to Implement the Recommendations Contained in the Annual Reports of the Special Rapporteur, UN Doc. A/HRC/4/32/Add.4 (26 February 2007). 55 The EMRIP was created to ‘provide the [Human Rights] Council with thematic expertise on the rights of indigenous peoples in the manner and form requested by the Council’. Human Rights Council Resolution 6/36 of 14 December 2007. 56 Report of the Expert Mechanism on the Rights of Indigenous Peoples on its First Session, UN Doc. A/HRC/10/56, para. 6. 57 Ibid., para. 11. 53

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58  The legal status of the UNDRIP were not empty words. For example, in 2013 the EMRIP submitted to the Human Rights Council the results of a survey seeking the views of States and indigenous peoples on best practices regarding the implementation of the Declaration.58 More generally, the studies produced by the EMRIP are normally followed by formal advice documents which, in contributing to clarifying and/or developing the relevant legal standards, are inevitably connected with the normative framework of the UNDRIP.59 In addition to indigenous-specific bodies, various UN specialised agencies contribute to enhancing compliance with the Declaration. The World Bank has traditionally paid special attention to the rights of indigenous peoples, having been the first multilateral financial institution to establish a safeguards policy on this issue. The current policy on indigenous peoples, namely Operational Policy 4.10, entered into force in July 2005.60 This policy could not make express references to the UNDRIP, for at the time the latter had yet to be formally adopted. Nevertheless, the policy is constructed around some of the pillars of the Declaration. Thus, in line with the spirit of the Declaration, the policy recognises ‘that the identities and cultures of indigenous peoples are inextricably linked to the lands on which they live and the natural resources on which they depend’.61 Following on from these premises, the core principle underlying Operational Policy 4.10 is that, before financing a project that affects indigenous peoples, the World Bank will require the borrower to engage in a process of free, prior and informed consultation with them. More precisely, the aim of the policy is to promote ‘a process of free, prior and informed consultation with [the] affected communities that [will lead to] broad support for the project’.62 The adoption of the Declaration in September 2007 and the contextual endorsement of the principle of FPIC have made this aspect of the policy obsolete. Accordingly, at the time of writing, a process of revision is taking place within the World Bank aimed at aligning its policy on indigenous peoples to current legal standards. In this respect, it is important to note that other international financial institutions have recently adjusted their approach to participation and consultation by fully endorsing the principle of FPIC.63 The latest development

UN Doc. A/HRC/EMRIP/2013/3 (25 April 2013). For example, Advice No. 1 (2009) on the Indigenous Peoples’ Right to Education, UN Doc. A/HRC/12/33; Advice No. 2 (2011) on Indigenous Peoples and the Right to Participation in Decision-Making, UN Doc. A/HRC/18/42; Advice No. 3 (2012) on Indigenous Peoples’ Languages and Cultures, UN Doc. A/HRC/21/53; Advice No. 4 (2012) on Indigenous Peoples and the Right to Participate in Decision-Making, with a Focus on Extractive Industries, UN Doc. A/HRC/21/55. 60 World Bank Operational Policy 4.10 on Indigenous Peoples (July 2005, revised 2013). 61 Ibid., para. 2. 62 Ibid., para. 11. 63 For example, the European Bank for Reconstruction and Development in 2008, and the Asian Development Bank, the European Investment Bank and the International Fund for Agricultural Development in 2009. See Implementation of the World Bank’s Indigenous 58 59

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The legal status of the UNDRIP 59 took place within the International Finance Corporation (IFC), which is the private sector arm of the World Bank. The new IFC’s Performance Standard on indigenous peoples, which entered into force in January 2012,64 establishes that when development projects are likely to have an adverse impact on indigenous peoples’ lives, the client will have to obtain the FPIC of the indigenous communities concerned.65 This principle becomes particularly significant considering that the previous Performance Standard on indigenous peoples, established in 2006, did not use the expression ‘FPIC’, but, rather, referred, like the current World Bank policy, to ‘free, prior and informed consultation’.66 A significant contribution to promoting compliance with the UNDRIP has also come from the United Nations Development Group (UNDG). The UNDG is not strictly speaking a UN specialised agency; rather, it is a UN global development network that collaborates with various specialised agencies dealing with, among others, indigenous issues. It is worth noting that the first UNDG policy on indigenous peoples, produced in 2001, was revised in the light of the adoption of the UNDRIP. Accordingly, a new set of guidelines, centred on the normative framework of the Declaration, was adopted in 2008.67 The aim of these guidelines is to assist other UN agencies and bodies involved in development issues and indigenous peoples to develop instruments and policies in accordance with the new global regime of indigenous rights. Crucially, the International Fund for Agricultural Development, a specialised agency of the UN dedicated to eradicating rural poverty in developing countries, has used these guidelines to produce its 2009 Policy on Engagement with Indigenous Peoples.68 This policy describes the UNDRIP as a historic milestone for indigenous peoples, referring repeatedly to its content as evidence of international standards concerning indigenous peoples’ rights. The UNDRIP has also influenced the Policy on Indigenous and Tribal Peoples adopted by the Food and Agriculture Organization (FAO) in August 2010.69 This policy highlights that FAO activities in the field will be guided Peoples Policy: A Learning Review (FY 2006–2008) (August 2011), Annex 9: Status of Policy Provisions for Free, Prior and Informed Consent in International Financial Institutions, at  http://siteresources.worldbank.org/INTSAFEPOL/Resources/Indigenous_peoples_ review_august_2011.pdf (accessed 20 September 2015). 64 Performance Standard 7 (amended on August 2011). The IFC’s Performance Standards define clients’ roles and responsibilities for managing their projects and the requirements for receiving and retaining IFC support. See www.ifc.org/wps/wcm/connect/1ee703 8049a79139b845faa8c6a8312a/PS7_English_2012.pdf?MOD=AJPERES (accessed 20 September 2015). 65 Ibid., paras. 10–14. 66 Performance Standard 7 (April 2006). 67 UNDP Guidelines on Indigenous Peoples’ Issues, at www2.ohchr.org/english/issues/indigenous/docs/guidelines.pdf (accessed 20 September 2015). 68 See www.ifad.org/english/indigenous/documents/ip_policy_e.pdf (accessed 20 September 2015). 69 Ibid.

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60  The legal status of the UNDRIP by the relevant provisions of the Declaration, which is regarded as the key instrument concerning indigenous peoples’ rights under international law.70 In sum, there is evidence that UN bodies and specialised agencies have paid special attention to the UNDRIP. They have not simply regarded it as an aspirational text; rather, they have made it the central instrument around which to develop their own initiatives in the field of indigenous rights. In many ways, this has exercised, and continues to exercise, a certain degree of pressure on States, which are regularly reminded by these bodies of their obligations to secure the rights of indigenous peoples as framed in the Declaration. Human rights treaty bodies While the various political bodies discussed in the previous section constitute an important component of the international settings within which the Declaration operates, human rights treaty bodies may play a more prominent role in promoting and monitoring compliance with the Declaration. At the outset, is should be stressed that international human rights treaties do not contain specific provisions on indigenous peoples. This, however, does not per se prevent the bodies entrusted to monitor their implementation from interpreting certain provisions in a way which takes into account indigenous rights norms and standards. It is well known that regional human rights courts have consistently promoted a dynamic model of interpretation that considers human rights treaties as evolving instruments. For example, the European Court of Human Rights has on many occasions observed that the European Convention on Human Rights is ‘a living instrument, which must be interpreted in the light of present-day conditions’.71 As explained by the same body, this is necessary in order to guarantee that the Convention reflects societal changes.72 It follows that its provisions ‘cannot be interpreted solely in accordance with the intentions of their authors as expressed more than forty years ago’.73 In applying this progressive principle, the Inter-American Court of Human Rights (IACtHR) has extended the content of the ‘corpus juris of international human rights law’ that needs to be taken into account when interpreting existing human rights treaties. For the IACtHR, this includes not only international legally binding instruments, but also non-binding

The text of the UNDRIP is in fact annexed to this policy. Tyrer v. United Kingdom (1978) 2 EHRR 1, para. 31. 72 Cossey v. United Kingdom (1990) 13 EHRR 622, para. 35. 73 Loizidou v.  Turkey (1997) 23 EHRR 513, para. 71 (decision on preliminary objections, 23 March 1995). See also the following decisions of the Inter-American Court of Human Rights: The Right to Information on Consular Assistance in the Framework of Guarantees for Due Legal Process, Advisory Opinion OC-16/99, Inter-American Court of Human Rights, Series A  16 (1999) para. 114; Mayagna (Sumo) Awas Tingni Community v.  Nicaragua, Inter-American Court of Human Rights, Series C 79 (2001) para. 146. 70 71

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The legal status of the UNDRIP 61 instruments such as declarations and recommendations.74 In other words, the IACtHR clearly recognises the important contribution of instruments of ‘varied content and juridical effects’75 inasmuch as the latter possess authoritative status in the international legal system. Crucially, the same dynamic approach has been employed by international human rights monitoring bodies. In the words of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, these bodies: Effectively apply a dynamic interpretation of the provisions of human rights treaty law. They consider human rights treaties ‘living instruments’ that need to be interpreted in the light of present-day conditions.76 Obviously, this dynamic approach to human rights interpretation has important implications for the development of international law. The key question here is whether, in order to interpret existing human rights provisions ‘in the light of present-day conditions’, human rights bodies would rely on, inter alia, soft law. More specifically, would human rights treaty bodies use the Declaration as a guide to interpret, or re-interpret, certain provisions of their respective instruments? As the following analysis indicates, the answer to this question should be positive. The CERD, that is, the body entrusted to monitor compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), has certainly given prominence to the Declaration in its treatment of indigenous issues. It has not only used the UNDRIP as a guide to interpret State parties’ obligations relating to indigenous peoples under the ICERD,77 but has also criticised them for failing to implement fully its provisions.78 Similarly, it has regularly requested States to take specific measures in relation to indigenous peoples in accordance with the rights and For example, in Comunidad Indigena Yakye Axa v.  Paraguay, Inter-American Court of Human Rights, Series C 125 (2005) para. 128; Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-American Court of Human Rights, Series A  18(2003) para. 120; The Right to Information on Consular Assistance in the Framework of Guarantees for Due Legal Process, Advisory Opinion OC-16/99, InterAmerican Court of Human Rights, Series A 16 (1999) para. 115. 75 Comunidad Indigena Yakye Axa v. Paraguay, supra note 74, para. 128. 76 Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, UN Doc. A/HRC/10/44 (14 January 2009) para. 47. 77 In its Concluding Observations on the fourth, fifth and sixth periodic reports of the US, the CERD, while recognising that the US did not vote for the UNDRIP, recommended that the instrument ‘be [nevertheless] used as a guide to interpret the State Party’s obligations under the Convention relating to Indigenous Peoples’. Concluding Observation on the USA, CERD/C/USA/CO/6 (February 2008) para. 29. 78 Concluding Observation on Japan, CERD/C/JPN/CO/3–6 (6 April 2010) para. 20(c). 74

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62  The legal status of the UNDRIP principles contained in the Declaration.79 Bodies such as the Committee on the Rights of the Child (CRC) and the Committee on Economic Social and Cultural Rights (CESCR) have also taken important steps in the aftermath of the adoption of the UNDRIP. In 2009, the CRC published a general comment on the rights of indigenous children under the Convention on the Rights of the Child.80 Besides referring to several specific provisions of the UNDRIP, the general comment recommends that States parties adopt a rights-based approach to indigenous children based not only on the Convention on the Rights of the Child but also on other relevant international standards such as the UNDRIP.81 In 2009, another relevant general comment was published, this time by the CESCR. The general comment refers to the right to cultural life, which is protected under Article 15(a) of the International Covenant on Economic, Social and Cultural Rights.82 The point to make here is that references to the provisions of the UNDRIP abound throughout this text. In an opening paragraph, the CESCR also highlights that the choice to exercise the right to take part in cultural life is a cultural choice that deserves special protection in relation to indigenous peoples, who have the right to the full enjoyment of all human rights and fundamental freedoms as recognised, among others, in the UNDRIP.83 It is important to note that general comments reflect a treaty body’s interpretation of the content of specific human rights provisions and therefore tend to inform future practice in that area. The annual reports of the UN High Commissioner for Human Rights on the rights of indigenous peoples fully confirm the positive picture described above. For example, in 2010 it was noted that: The [UNDRIP] has confirmed its place as the United Nations’ key tool in advancing the rights of indigenous peoples … the OHCHR [Office of the High Commissioner for Human Rights] and various human rights mechanisms have pursued a broad range of activities to help Member States, indigenous peoples and others concerned to make sure that the principles of the Declaration are reflected in laws, policies and practices.84

See, for example, Concluding Observation on Fiji, CERD/C/FJI/CO/17 (16 May 2008)  para. 13; Concluding Observation on Finland, CERD/C/FIN/CO/20–22 (23 October 2012)  para. 22; Concluding Observation on the Russian Federation, CERD/C/ RUS/CO/20–22 (17 April 2013) para. 20. 80 Indigenous Children and Their Rights under the Convention, General Comment No. 11, UN Doc. CRC/C/GC/11 (12 February 2009). 81 Ibid., para. 82. 82 General Comment No. 21, Right of Everyone to Take Part in Cultural Life, UN Doc. E/C.12/GC/21 (21 December 2009). 83 Ibid., para. 7. 84 Report of the United Nations High Commissioner for Human Rights on the Rights of Indigenous Peoples, UN Doc. A/HRC/15/134 (8 July 2010) paras. 91 and 92. See also the Reports of 2009, UN Doc. A/HRC/10/51 (14 January 2009); 2008, UN Doc. A/ HRC/9/11 (8 September 2008); and 2007, UN Doc. A/HRC/4/77 (6 March 2007). 79

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The legal status of the UNDRIP 63 The 2013 report also highlighted that the ‘OHCHR further strengthened its work to advance the rights of indigenous peoples at the country level and increased its efforts to give practical guidance on the content of the provisions of the [UNDRIP] to various key stakeholders ranging from Parliamentarians to national human rights institutions’.85 Before concluding this section, it should be stressed that looking only for explicit references to the Declaration in the practice of human rights treaty bodies would not do justice to the wider contribution made by the latter to the promotion of indigenous rights. On the one hand, it should not be forgotten that even the content of the then draft declaration ‘operated as an indirect source of authority’ in the practice and jurisprudence of these bodies.86 On the other hand, the latter regularly recommend measures to advance the rights of indigenous peoples that are in line with the provisions and principles of the Declaration without expressly referring to it.

4.  The role of regional and national courts Human rights treaty bodies have promoted, and continue to promote, State compliance with the Declaration. Crucially, States parties have a legal obligation, under international law, to comply with the provisions of those treaties as interpreted by the respective monitoring bodies. However, the decisions of those organs are not in themselves legally binding. Against this background, it is unquestionable that the endorsement of the Declaration by national as well as regional (human rights) courts would provide a more direct and effective way of protecting the human rights of indigenous peoples. As the following examples will illustrate, these bodies can successfully use the UNDRIP to interpret, clarify, determine or even expand existing regional or national laws, thus highlighting the potential of the Declaration as a direct or indirect source of legal interpretation. At the regional level, the IACtHR expressly referred to Article 32 of the UNDRIP while considering whether, and to what extent, Suriname could grant concessions for the exploration and extraction of natural resources found within Saramaka territory.87 Similarly, in the 2012 Saraya v. Ecuador case, where Ecuador was found to be in violation of the rights of indigenous peoples to consultation, to communal property and to cultural identity,

Report of the United Nations High Commissioner for Human Rights on the Rights of Indigenous Peoples, UN Doc. A/HRC/24/26, 1 July 2013, para. 58. 86 Pinero has made this point specifically in relation to the jurisprudence of the IACtHR. However, the same point can be applied to UN human rights treaty bodies. See L. Rodriguez-Pinero, ‘The Inter-American System and the UN Declaration on the Rights of Indigenous Peoples: Mutual Reinforcement’ in Allen and Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples, supra note 3, pp. 457–484, at p. 469. 87 Saramaka People v. Suriname, Inter-American Court of Human Rights, Series C 172 (2007) para. 131. 85

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64  The legal status of the UNDRIP the IACtHR made express references to various provisions of the UNDRIP, including those in Articles 19 and 32 concerning the right to consultation and Article 38 affirming the obligation for States to take the appropriate measures to achieve the ends of the Declaration.88 On both occasions, the provisions of the UNDRIP contributed to expanding the meaning and scope of Article 21 of the Inter-American Convention of Human Rights establishing the right to property. A similar development has taken place in the jurisprudence of the African Commission on Human and Peoples’ Rights. Although this organ is not a court proper, until the establishment of the African Court of Human and Peoples’ Rights89 it represented the principal human rights institution in the continent, and today continues to play a central role in the African human rights system. After acknowledging that the UNDRIP would become a point of reference for the promotion and protection of indigenous peoples’ rights on the African continent,90 the African Commission fully upheld the jurisprudence of the IACtHR with regard to the rights of indigenous peoples to their lands and to consultation in the 2010 landmark decision concerning the Endorois community in Kenya. In doing so, it made express references to Articles 8, 10, 25, 26 and 27 of the Declaration in order to interpret Articles 14, 21 and 22 of the African Charter on Human and Peoples’ Rights.91 Positive developments have also occurred within the European Court of Human Rights. Although this body has yet to engage directly with the normative framework of the Declaration,92 a recent case concerning the rights of some Sami communities in Sweden to use privately owned land for winter grazing of their reindeer may have opened the door to new important developments.93 In particular, the partly dissenting opinion of Judge Ziemele referred to the UNDRIP as a recently adopted instrument that affects the way in which States’ obligations towards indigenous peoples should be read Ibid., paras. 133, 160, 166, 167, 180, 185, 187, 201, 215, 217 and 231. Established by virtue of Article 1 of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, adopted by Member States of the then Organization of African Unity (OAU) in Ouagadougou, Burkina Faso, in June 1998. The Protocol came into force on 25 January 2004. 90 ACHPR/Res.121 (XXXXII) 07 Resolution on the United Nations Declaration on the Rights of Indigenous Peoples, 28 November 2007, at http://old.achpr.org/english/resolutions/ resolution121_en.htm (accessed 20 September 2015). 91 Centre for Minority Rights Development (Kenya) v. Kenya, African Commission on Human and Peoples’ Rights, 276/2003 (4 February 2010) para. 204. 92 For a critical assessment of the European Court of Human Rights’ approach to indigenous peoples’ rights, see G.  Gismondi, ‘Denial of Justice:  The Latest Indigenous Land Disputes before the European Court of Human Rights and the Need for an Expansive Interpretation of Protocol 1’, at http://works.bepress.com/giovanna_gismondi/1 (accessed 20 September 2015). 93 European Court of Human Rights, Handölsdalen Sami Village and Others v.  Sweden, Application No. 39013/04, Judgment of 30 March 2010. 88 89

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The legal status of the UNDRIP 65 and understood.94 More specifically, Judge Ziemele referred to Articles 26 and 27 of the UNDRIP, which affirm, respectively, the right of indigenous peoples to collectively own their lands, and the obligation for States to establish fair and transparent processes aimed at recognising and adjudicating such a right. Turning to the domestic level, several issues will inevitably affect national courts’ inclination to decide domestic cases taking into account the rights and principles contained in the UNDRIP. In particular, deferential attitudes towards the executive power as well as traditionally hostile approaches to international law sources may prevent courts from taking a more progressive stand in relation to the Declaration. Despite these apparent limitations, domestic courts are increasingly exposing governments’ failure to respect the rights of indigenous peoples, especially land and consultative rights, and, in so doing, they are relying, either directly or indirectly, on several provisions embodied in the UNDRIP.95 For example, a decision of the Constitutional Court of Bolivia concerning the right of indigenous peoples to consultation made express references to, inter alia, Articles 10, 29 and 32 of the UNDRIP.96 Similarly, in a case concerning the consultative rights of an indigenous community decided by the Constitutional Court of Colombia, Article 32 of the Declaration contributed to defining the relevant legal framework.97 Express references to the same article can also be found in a recent pronouncement of the Supreme Court of Belize, which was called to decide on a case dealing with the permission granted by the government to a foreign ‘In the last ten to twenty years, significant developments have taken place as far as the rights of indigenous peoples in international human rights law are concerned. As a result of new instruments (including … the 2007 UN Declaration on the Rights of Indigenous Peoples), old and new monitoring institutions, … and concluding observations on State reports, general comments and case-law from existing UN human rights treaty bodies … special rights and special measures have been introduced in an attempt to overcome discrimination against indigenous peoples and thus to achieve equal rights. With the stated purpose of guaranteeing their cultural identities and other cultural rights, these special steps include the right of indigenous peoples to own the land which such groups have traditionally used and to engage in traditional economic activities. In this regard, two Articles of the 2007 Declaration, as adopted by General Assembly Resolution 61/295, are noteworthy [namely Article 26 and 27].’ Ibid., Partly Dissenting Opinion of Judge Ziemele, paras. 2 and 3. 95 In a comparative analysis of domestic judgments on indigenous land rights, Pentassuglia highlighted how a number of cases decided in Kenya, Peru, Japan, the Philippines, Malaysia, South Africa and Canada are creating a new judicial trend. In particular, he noted that ‘domestic courts seem to be gradually emerging as real or potential partners with international judicial and quasi-judicial bodies in a dynamic jurisprudential process of (human rights) law-interpretation and application … A  string of judgments involves reliance by courts on international law sources to shape or support the interpretation of relevant constitutional or statutory provisions’. G. Pentassuglia, ‘Towards a Jurisprudential Articulation of Indigenous Land Rights’ (2011) 22 European Journal of International Law pp. 165–202, at pp. 190–195. 96 Constitutional Court of Bolivia, Case 2003/2010-R of 25 October 2010 (section III.5). 97 Constitutional Court of Colombia, Case T-129 of 3 March 2011, section 7.1. 94

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66  The legal status of the UNDRIP company to construct a road and conduct commercial oil drilling within the boundaries of a national park.98 This followed a precedent case concerning the land rights of a Mayan community, where the same Court referred to Article 26 concerning indigenous peoples’ land rights, Article 42, which affirmed States’ duties to promote respect for and the full application of the Declaration’s provisions, and Article 46, which highlighted the principles that should inform the process of interpretation of the UNDRIP.99 Interestingly, developments of this kind have not taken place only in those countries that have adopted a more liberal approach towards the Declaration. In 2013 the New Zealand Supreme Court referred to the UNDRIP in order to partially construe the scope of Maori rights to freshwater and geothermal resources.100 Even before being formally adopted by the General Assembly, the (draft) declaration was mentioned by the Supreme Court of Canada in a case concerning the existence of an Aboriginal right to import goods across the Canada–US border. In that context, the Court expressly referred to Article 35 (currently Article 36 of the UNDRIP), which affirmed the right of indigenous peoples, particularly those divided by international borders, to maintain and develop contacts, relations and cooperation with other peoples across borders.101 Despite not being explicitly mentioned, the Declaration also seems to have influenced a recent important decision of the Supreme Court of Canada. In the Tsilhqot’in Nation v.  British Columbia case, the Court hardened its understanding of the Crown’s duty to accommodate the interests of indigenous peoples, suggesting that, at least in certain situations, government incursions on the lands controlled by an indigenous group without the consent of the latter would be particularly difficult to justify.102 In this

Supreme Court of Belize, Claim No. 394 of 2013, Decision of 3 April 2014. Supreme Court of Belize, Claim No. 171 and 172 of 2007, Decision of 18 October 2007. 100 New Zealand Mãori Council et al and the Attorney General et al SC 98/2012, [2013] NZSC 6 (on 27 February 2013) paras. 91 and 92. 101 Mitchell v. M.N.R. [2001] 1 SCR 911, 2001 Supreme Court of Canada 33, para. 81. The Declaration was always cited in a federal court’s judgment of 2012. Elsipogtog First Nation v.  Canada (Attorney General) (sub nom. Simon v.  Canada (Attorney General)), 2012 FC 387, [2012] 3 FCR D-7, para. 89. 102 Tsilhqot’in Nation v.  British Columbia 2014 SCC 44. As a general principle, the Court affirmed that, once Aboriginal title is established, that is to say, once the right of an indigenous community to control a portion of land has been recognised, no use of that land will be permitted without the consent of that community. That said, the court conceded that under certain circumstances, the government may override the lack of consent. The requirements that the government must fulfil in order to do so, however, are particularly stringent. First, in addition to discharging its procedural duty to consult and accommodate, the government must demonstrate that its action is aimed at pursuing an objective which, considered from both the broader public’s and the indigenous community’s perspective, appears compelling and substantial; second, the government’s proposed action cannot substantially deprive future generations of an Aboriginal group of the benefit of their land; and, third, the government must act in accordance with the principle of proportionality, which requires, among other things, that the benefits that may be expected to flow from its proposed action should 98 99

The legal status of the UNDRIP 67 regard, it is telling that one passage of the decision expressly encouraged the government to obtain the consent of the interested Aboriginal groups before proceeding to use or exploit their lands.103

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5.  Conclusions The question of the legal value and effects of the UNDRIP is central to the discussion of the instrument’s potential to bring justice to indigenous peoples. It is evident that justice would remain unrealised if the human rights recognised in the Declaration were to be disregarded in practice. Against this background, this chapter has sought to discount the view that, as a soft law document, the UNDRIP lacks capacity to influence State behaviour. By contrast, the discussions in this chapter have shown that the international consensus which surrounded its adoption, the solid legal background on which it was built and the broad participation of indigenous peoples in the remarkably long drafting process all had important positive implications for the instrument’s compliance pull. More specifically, this chapter has suggested that, in light of the degree of authoritativeness and legitimacy that the Declaration has acquired in the international legal system, States are not in a position to dismiss it as a mere aspirational text. In this context, political pressure towards State compliance with the UNDRIP is exercised by a number of international organs that deal, either directly or incidentally, with the issue of indigenous rights. Furthermore, human rights treaty bodies have used the Declaration to interpret and expand a number of provisions contained within their respective instruments. This is particularly significant considering that States have an obligation under international law to comply with the content of ratified treaties as interpreted by the relevant monitoring bodies. More importantly, there are ways in which regional and domestic courts can rely, either directly or indirectly, on the UNDRIP. In particular, as suggested by the practice of the IACtHR and a number of national courts, the UNDRIP can be used as an authoritative instrument to clarify, interpret and expand the meaning and scope of regional and domestic laws. Taken together, the discussions in this chapter and Chapter 2 have indicated that international law has provided a valid response to the demands for justice of indigenous peoples by creating an instrument, i.e. the UNDRIP, that is not only innovative and progressive but also capable, in spite of its soft law nature, to make a tangible impact on the ground. In addition, this not be outweighed by the adverse effects on the affected group. For a broader discussion of the duty to consult indigenous peoples in Canada, see D. Newman, Revisiting the Duty to Consult Aboriginal Peoples (Purich Publishing 2014). 103 ‘Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.’ Tsilhqot’in Nation v. British Columbia, supra note 102, para. 97.

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68  The legal status of the UNDRIP chapter has highlighted a more general point that is particularly important for the discussions in this book, namely that soft law can be a valuable tool at the disposal of disempowered and vulnerable groups seeking the recognition of their human rights under international law. Therefore, the refusal of States to create a legally binding treaty would not necessarily deliver a fatal blow to the aspirations of these groups, as under certain circumstances soft law instruments can equally serve the purpose of effectively protecting and promoting human rights.

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Part II

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4 The United Nations Declaration on the Rights of Indigenous Peoples and the human rights struggles of other groups in international law 1.  Introduction In order to establish whether the adoption of a remarkably progressive instrument with real potential to make a difference such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration) is evidence that international law has become or is becoming more receptive to the demands for justice of disempowered and vulnerable groups, this chapter will examine the human rights struggles of three groups that not only advance claims similar to those of indigenous peoples but also share important features with the latter. The first two groups, namely homeland minorities and the Roma, are, like indigenous peoples, typical ethno-cultural groups. Characterised by a distinctive identity and historical connection to a specific territory, the former often demand, like indigenous peoples, important political rights such as the rights to self-determination and autonomy with a view to remedying what they perceive as unjust distributions of sovereign power and/or ending ongoing forms of domination and oppression. In the face of widespread discrimination and socio-economic deprivation, the Roma demand, like indigenous peoples, equal treatment and access to socio-economic resources as well as respect for their political and cultural rights, including the right to follow a particular way of life which is different from that of dominant societies. While, in light of the above similarities, it would be reasonable to expect that both homeland minorities and the Roma should be able to mirror the legal achievements of indigenous peoples, this chapter will highlight that, compared to that of indigenous peoples, the struggles of these two groups have produced rather different results. Peasants are the third group that will be considered in this chapter.1 While they are not an ethno-cultural group per se, peasants exhibit the signs of

For a discussion of the category of peasants, see M. Edelman, ‘What is a Peasant? What are Peasantries?’, Briefing Paper on Issues of Definition, Prepared for the First Session of the Intergovernmental Working Group on a United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas, Geneva, 15–19 July 2013.

1

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72  The human rights struggles of other groups discrimination and vulnerability typical of non-dominant groups, and, more importantly, claim collective rights to their lands and resources that, being fundamentally framed in cultural terms, are very similar to those advanced by indigenous peoples. The question of peasant rights has recently attracted intense international attention, as confirmed by the fact that a peasant declaration is currently being discussed at the United Nations (UN) level. This chapter will illustrate the important obstacles that peasants are facing in their efforts to obtain a fair and adequate recognition of their rights, questioning whether international law will ultimately be able to provide a valid response to their demands.

2.  Homeland minorities in international law In his Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, Special Rapporteur Francesco Capotorti defined a minority as: A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members  – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.2 This definition, which was formulated in the late 1970s, successfully combines objective factors such as the existence of a shared ethnicity, language or religion and subjective factors, especially the fact that individuals must identify themselves as members of a minority. While Capotorti’s definition remains generally valid today, nationality (or citizenship)3 is no longer seen as a criterion that can legitimately justify the exclusion of some persons or groups from enjoying (certain) minority rights. This, however, does not mean that different minorities will necessarily enjoy the same rights. In this respect, an important distinction is normally drawn between the so-called ‘old’ and ‘new’ minorities. As explained by Eide, ‘old minorities are composed of persons who lived, or whose ancestors lived, in the country or a

United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities. UN Doc. E/CN.4/Sub.2/384/Rev.1. 1979. New York: United Nations, 1979, at 568. 3 The terms ‘citizenship’ and ‘nationality’ are often used interchangeably, although they refer to two different, albeit interlinked, dimensions of an individual’s connection with a State: the concept of citizenship essentially describes the internal dimension of this connection, while the concept of nationality refers to the external aspect thereof. See G. Guliyeva, ‘Defining the Indefinable: A Definition of “Minority” in EU Law’ (2010) 9 European Yearbook of Minority Issues pp. 189–222. 2

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The human rights struggles of other groups 73 part of it before the State became independent or before the boundaries were drawn in the way they are now’.4 By contrast, ‘new’ minorities are composed of persons such as migrants and asylum seekers who have come in after the State became independent.5 While the latter should also have access to minority rights, it is generally accepted that old minorities will have stronger rights than those who have only recently arrived in a country.6 Evidently, old minorities and indigenous peoples share important characteristics that facilitate comparison among them. Generally, they both find themselves in a non-dominant position; their culture, language and/or religion are different from those of the respective majorities, and they both wish to retain and promote their own distinct identity. Most importantly, while they may lack the spiritual attachment typical of indigenous peoples, old minorities also have strong and long-standing attachments to their territories. In this sense, they can also be referred to as homeland minorities, which, according to Kymlicka, represent: Culturally distinct groups living on their traditional territory, who think of themselves as a distinct people or nation, and show a deep attachment to their cultural distinctiveness and to their homeland, which they have struggled to maintain despite being incorporated (often involuntarily) into a larger state.7 The attachment that these minorities have to their homelands is fully reflected in the ‘territorial’ dimension of their principal political claims. Thus, in addition to less controversial rights such as cultural rights and participatory rights, homeland minorities often demand the recognition of far-reaching political rights such as the rights to self-determination and autonomy. These claims are typically associated with what these groups perceive as (historically contextualised) unjust distributions of sovereign power8 and/or ongoing patterns of domination and oppression.9 In spite of the above parallels, however, international law has not

A. Eide, ‘The Rights of “Old” versus “New” Minorities’ (2002) 2 European Yearbook of Minority Issues pp. 363–379, at p. 365. 5 Ibid. 6 Commentary of the Working Group on Minorities to the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/AC.5/2005/2 (4 April 2005) paras. 10 and 11. 7 W. Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’ in S. Allen and A. Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart 2011) pp. 183–208, at p. 184. 8 Indeed, for some the very concept of minority rights should be seen as ‘part of a larger arsenal of international entitlements that monitor the justice of the distribution of sovereign power in the world’. P. Macklem, ‘Minority Rights in International Law’ (2008) 6 International Journal of Constitutional Law pp. 531–552. 9 The actual conditions of homeland minorities vary significantly. While some do not face serious violations of human rights, others suffer from systematic discrimination, persecution and economic deprivation. In spite of these differences, many of these groups struggle for a similar 4

74  The human rights struggles of other groups provided similar responses to the needs and aspirations of indigenous peoples and homeland minorities, as the following section will highlight.

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2.1  The limited recognition of homeland minorities’ rights The first systematic attempt to protect minority rights at the international level was made by the League of Nations in the aftermath of the First World War.10 The system consisted of a set of treaties and declarations aimed at protecting the rights of certain minorities who found themselves in newly emerged or enlarged States following the post-war redistribution of territory and drawing of new borders. A particularly innovative aspect of the League system was the fact that treaty provisions were supervised politically by the League Council and judicially by the Permanent Court of International Justice. Following the collapse of the League of Nations and the tragic events of the Second World War, the newly established UN decided to tackle the question of minority rights in a rather different fashion. Although minority issues remained on the UN agenda,11 the predominant view was that the UN human rights system needed to focus on individual human rights. Accordingly, no efforts were made to devise an instrument specifically devoted to promote and protect the rights of minorities. Before long, however, the UN was forced to reconsider this approach, as the ethnic tensions and conflicts that accompanied the dissolution of the Soviet Union and Yugoslavia prompted new interest in targeted actions related to minority rights. In terms of standard setting, the most important outcome of this renewed emphasis was the adoption in 1992 of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (Minority Declaration).12 At the outset, it should be noted that the Minority Declaration is a particularly short document cause, that is, their full political empowerment, by claiming, inter alia, a re-organisation of the national power structure. For some recent UN reports on the human rights situations of minorities around the world, see Report of the Special Rapporteur on Minority Issues, ‘Preventing and Addressing Violence and Atrocities against Minorities’, UN Doc. A/69/266 (6 August 2014); Report of the Independent Expert on Minority Issues, Gay McDougall, ‘The Role of Minority Rights Protection in Promoting Stability and Conflict Prevention’, UN Doc. A/HRC/16/45 (16 December 2010). 10 For a broader discussion of minorities in international law, see G. Pentassuglia, Minorities in International Law (Council of Europe 2002). 11 Examples include the adoption of the 1948 Genocide Convention (UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277), the creation of the Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1947 and the inclusion of Article 27 on minority rights in the International Covenant on Civil and Political Rights (UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171). 12 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN General Assembly Resolution A/RES/47/135 (3 February 1992).

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The human rights struggles of other groups 75 comprised of only nine provisions. By contrast, the UNDRIP contains 46 articles. Furthermore, this instrument establishes a (limited) number of cultural and political rights, and, contrary to the UNDRIP, fails to directly address economic and social issues. More importantly, it refers to the individual rights of members of minorities instead of embracing collective rights, like the UNDRIP does. The major shortcoming of the Minority Declaration, however, is its failure to recognise fundamental political rights such as the rights to self-determination and autonomy that, as discussed in the previous section, are central to the claims of homeland minorities.13 Thus, Article 2, which can be regarded as the most important provision of the Minority Declaration, simply affirms the right of persons belonging to minorities to enjoy their own culture, to profess and practise their own religion, and to use their own language.14 The same provision further states that persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning them, thus refraining from endorsing the bolder principle of free, prior and informed consent (FPIC) that would later underpin the participatory rights articulated in the UNDRIP.15 Not surprisingly, the Minority Declaration has been criticised for its unambitious character since the very time of its adoption,16 and yet the

It should also be noted that European standard-setting instruments have not gone much further than the Minority Declaration. In particular, the Council of Europe’s 1995 Framework Convention for the Protection of National Minorities failed to recognise a right to autonomy for minorities, notwithstanding the suggestion of the Council of Europe’s Parliamentary Assembly that such a right be included in the document. Furthermore, no reference to self-determination can be found in the text. Council of Europe, Framework Convention for the Protection of National Minorities, 1 February 1995, ETS 157. For a discussion of the above shortcomings, see L. Barsh, ‘Indigenous Peoples in the 1990s: From Object to Subject of International Law?’ (1994) 7 Harvard Human Rights Journal pp. 33–86, at p. 79; and Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’ supra note 7, pp. 192–195. 14 Article 2(1) affirms that ‘persons belonging to national or ethnic, religious and linguistic minorities have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination’, while Article 2(2) adds that ‘persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life’. 15 Article 2(3) establishes that ‘persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation’. Cf., for example, Article 19 of the UNDRIP, which affirms that: ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.’ 16 P. Thornberry, ‘The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities:  Background, Analysis, Observations and an Update’ in A. Phillips and A. Rosas (eds), The UN Minority Declaration (Abo Akademi 1993) pp. 13–76, at p. 56; Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’ supra note 7, 13

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76  The human rights struggles of other groups establishment of the UNDRIP has further exposed the limits of this instrument, leading some scholars to define the current normative gap between minority and indigenous rights as morally problematic.17 As of today, States have shown no commitment to strengthen this declaration or create a new, and stronger, instrument on minority rights. It also seems unlikely that developments of this kind will occur in the foreseeable future. One plausible reason for this is that States have major concerns about the political claims of homeland minorities. This is nowhere more evident than in the case of the right to self-determination, which, as explained in Chapter 2, has traditionally included an entitlement to statehood. Given that several homeland minorities have open secessionist agendas,18 States are particularly wary of the potential consequences of recognising even a limited right to internal self-determination for these groups. This is even more true considering that some of the homeland minorities that seek independence would certainly have the political and financial capabilities to achieve their goals.19 As a result, States have regularly opposed any reference to the right to self-determination in instruments dealing with minority rights.20 Even the endorsement of a less ambitious right to autonomy could be somehow problematic. In particular, the fact that demands for autonomy may come from particularly rich regions

pp. 192–195; G. Alfredsson, ‘Minority Rights: A Summary of Existing Practice’ in A. Phillips and A. Rosas (eds), The UN Minority Declaration (Abo Akademi 1993) pp. 77–86, at p. 78. 17 Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’ supra note 7, p. 201. 18 For an overview of European minorities with autonomist or secessionist agendas, see the database produced by the Association for the Promotion of European Minorized Peoples at www.eurominority.eu (accessed 20 September 2015). For an overview of the most dangerous self-determination conflicts worldwide, see the Peoples under Threat Data produced by Minority Rights Group International at http://peoplesunderthreat.org/data (accessed 20 September 2015). 19 Consider, for example, the case of the Catalans in Spain. After the 2012 elections backed pro-independence parties, Catalonia has (thus far unsuccessfully) sought to hold a referendum on independence. According to economic indicators, Catalonia is one of the richest regions of Spain. For example, with a gross domestic product of €195 billion in 2010, the Catalan economy is the biggest of all the autonomous communities of Spain. With regard to GDP per capita, Catalonia is in fourth position after the Community of Basque Country, Madrid and Navarre, with €26,600 in 2010, higher than the Spanish average of €22,800 and the average of the European Union (EU) of €24,500. See https://ec.europa.eu/ growth/tools-databases/regional-innovation-monitor/base-profile/catalonia (accessed 20 September 2015). 20 The pleadings in the recent Advisory Opinion on Kosovo before the International Court of Justice (ICJ) are testament to States’ anxiety about the relationship between minority rights, self-determination and secession. The ICJ was asked to decide whether the unilateral declaration of independence from Serbia issued by Kosovo in February 2008 was legal under international law. While the Court took a very prudent approach to answering this question, simply establishing that international law does not prohibit declarations of independence, the interest and concerns of many States related to the underlying issue which the Court astutely overlooked, namely the meaning and scope of the law of self-determination, including secession, under international law. In other words, did the Kosovo Albanians have

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The human rights struggles of other groups 77 could pose a financial threat to the affected governments.21 In addition, multinational States fraught with ethnic tension could fear the multiplication of such demands on their territory, with important implications for their political unity.22 Finally, stronger participatory rights could be viewed with suspicion by nationally heterogeneous States due to their potential impact on national decision-making and cohesion policies. That the above concerns represent important impediments to the full recognition of the rights claimed by homeland minorities should not be very surprising. In fact, these are the very same concerns that shaped to a significant extent the process of adoption of the Minority Declaration in the early 1990s. As noted above, it was the ethnic tensions and violence that followed the dissolution of the former Yugoslavia and Soviet Union that re-ignited an interest in minority rights at the international level. Under such conditions, it was only natural that anxieties about ‘the break-up of States, ethnic conflicts and secessionist trends’23 would contextually define the international efforts

a right to secede from Serbia and create their own State? Considering both the written and oral rounds, it is telling that more than 40 States thought it necessary to make submissions before the Court. Of those States, 16 were unsupportive of the claims made by Kosovo, while 26 generally backed them, although in various ways and degrees. Interestingly, the majority of those who supported the claims of Kosovo relied on the so-called ‘sui generis’ argument, which posits that Kosovo was a sui generis case that did not set a precedent in international law. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p.  403. For a detailed analysis of States’ statements before the ICJ, see M. Milanovic, ‘Arguing the Kosovo Case’ in M. Milanovic and M. Woods (eds), The Law and Politics of the Kosovo Advisory Opinion (Oxford University Press 2015) pp. 21–59. For an analysis of the Court’s findings, see H. Hannum, ‘The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused?’ (2011) 24 Leiden Journal of International Law pp. 155–161. 21 Consider, for example, the case of Italy, where Lombardy and Veneto, two of the richest regions, are taking concrete steps towards gaining higher degrees of autonomy from the Italian State. ‘Lombardia, via Libera alla Proposta di Referendum per Maggiore Autonomia’, Corriere della Sera, 17 February 2015, at http://milano.corriere.it/notizie/politica/15_ febbraio_17/lombardia-via-libera-proposta-referendum-maggiore-autonomia-cbd90254-b 6e4-11e4-a17f-176fb2d476c2.shtml (accessed 20 September 2015); and Corte Costituzionale della Repubblica Italiana, Sentenza N. 118 (2015), Giudizio di Legittimita’ Costituzionale in via Principale, at www.cortecostituzionale.it/actionSchedaPronuncia. do?anno=2015&numero=118 (accessed 20 September 2015). 22 Furthermore, in regions such as Eastern Europe, political demands for autonomy and self-government are made more problematic by the relationships that some minorities have with neighbouring kin-states. For a discussion, see S. Pogonyi, M. Kovacs and Z. Kortvelyesi, ‘The Politics of External Kin-State Citizenship in East Central Europe’, EUDO Citizenship Observatory, October 2010, at http://eudo-citizenship.eu/docs/ECEcompreport.pdf (accessed 20 September 2015). 23 F. Benoit-Rohmer, The Minority Question in Europe (Council of Europe 1996) pp. 23 and 24. The tension between minority rights and territorial integrity was also revealed during the very first session of the former UN Working Group on Minorities (WGM) that was established in 1995 as a subsidiary organ of the Sub-Commission on the Promotion and Protection of Human Rights (previously called the Sub-Commission on Prevention of Discrimination and

78  The human rights struggles of other groups to protect minority rights, leading to the creation of an instrument that failed to meet the aspirations of its beneficiaries.

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3.  The human rights of the Roma The term ‘Roma’ is used here to refer to various groups and sub-groups such as the Roma, Sinti, Kale, Travellers and Gypsies which are united by common historical roots, linguistic communalities and a shared experience of discrimination.24 Although European Roma represent by far the largest Roma population in the world,25 considerable numbers of Roma also live in countries such as Turkey26 and Russia,27 while large Roma communities can be found in Latin America28 and North America.29 Accordingly, although Europe is often the primary focus of discussion, it should not be forgotten that the question of Roma rights has a global rather than a regional character. Roma typically experience two kinds of interrelated problems:  racism and discrimination on the one hand, and extreme socio-economic marginalisation on the other.30 With regard to the former, they face deeply embedded social and structural discrimination wherever they live. In particular, widespread prejudices and stereotypes often lead to labelling Roma as criminal, aggressive or as parasites on welfare systems.31 In this respect, hate speech in social media often plays a particular negative role.32 To make things worse, racially motivated episodes of violence, harassment and intimidation, sometimes at the hands of the police,33 are also frequently reported.34 In terms of socio-economic conditions,

Protection of Minorities) to examine ways and means to promote and protect the rights of persons belonging to minorities as set out in the Minority Declaration. On that occasion, the Chairman-Rapporteur pointed out that the mandate of the WGM was ‘to find ways and means to implement the rights contained in the Declaration, in particular, equality, non-discrimination and the respect for the territorial integrity and political independence of States’. Report of the Working Group on Minorities on its First Session, UN Doc. E/CN.4/ Sub.2/1996/2 (28 November 1995). 24 ‘Comprehensive Study of the Human Rights Situation of Roma Worldwide, with a Particular Focus on the Phenomenon of Anti-Gypsyism’, Report of the Special Rapporteur on Minority Issues, Rita Izsák, UN Doc. A/HRC/29/24 (11 May 2015) para. 2 (hereinafter UN Roma Study 2015). 25 It is estimated that 11 million Roma live in Europe. UN Roma Study 2015, para. 5. 26 Ibid., para. 7. 27 Ibid. 28 Ibid., para. 8. 29 Ibid., para. 9. 30 ‘The Human Rights Problems and Protections of the Roma’, Working Paper prepared by Mr. Y. Yeung Sik Yuen pursuant to the Sub-Commission decision 1999/109, UN Doc. E/ CN.4/Sub.2/2000/28 (23 June 2000) para. 18. 31 UN Roma Study 2015, para. 12. 32 Ibid., para. 24. 33 Ibid., para. 21. 34 ‘We Ask for Justice:  Europe’s Failure to Protect Roma from Racist Violence’ (Amnesty International 2014).

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The human rights struggles of other groups 79 the Roma are certainly one of the world’s most disadvantaged groups. In Europe between 70 and 90 per cent of Roma live in conditions of severe material deprivation.35 They face poor housing conditions36 and are often denied access to education, employment and health care.37 Outside Europe, research suggests that their conditions are equally challenging. In particular, lack or poor access to education, health care, clean water and adequate food are major obstacles typically encountered by Roma in their everyday life.38 In light of the seriousness of the above problems, the Special Rapporteur on Minority Issues (SRMI) has recently suggested that only a comprehensive approach to the human rights situation of the Roma could produce meaningful results. Such an approach should simultaneously address the need to protect the existence and identity of the Roma, particularly against policies of forced assimilation, the need to fight embedded discrimination, and the need to promote the political inclusion and participation of Roma people.39 One way of incorporating all these objectives within a consistent normative framework would be the creation of a special instrument aimed at promoting and protecting the rights of the Roma. This view, as will be further discussed below, is shared by various Roma organisations that are struggling for the recognition of Roma rights and respect for Roma identity, and yet, no international instrument on Roma rights has thus far been established under international law.40 At the UN level, no direct efforts have been made towards this goal. More concrete and yet unproductive steps, by contrast, have been taken at the level of the Council of Europe, which, in 2004, formalised a Partnership Agreement with the European Roma and Travellers Forum (ERTF), a non-governmental organisation (NGO) committed to promoting Roma rights in Europe and giving the Roma a common voice in decision-making

UN Roma Study 2015, para. 28. ‘The Human Rights Problems and Protections of the Roma’, supra note 30, para. 24. 37 UN Roma Study 2015, para. 28. 38 Ibid., paras. 29–31. 39 Ibid., para. 17. 40 At the international level, Roma rights can be protected through instruments such as the Minority Declaration (which was discussed in the previous pages), the International Covenant on Civil and Political Rights, especially Article 27, and the Convention on the Elimination of All Forms of Racial Discrimination. As to the latter, see, in particular, the Committee on the Elimination of Racial Discrimination General Recommendation XXVII on Discrimination against Roma (16 August 2000). The European Convention on Human Rights (ECHR) and the Framework Convention on the Protection of National Minorities (FCNM) can also be used to assert some Roma rights in the European region, e.g. cultural rights under Article 8 of the ECHR and the right to participation in matters affecting them under Article 15 of the FCNM. However, neither the ECHR nor the FCNM were devised to respond to the full range of claims and issues related to the Roma that were discussed above. It should also be noted that at the EU level, the Roma can benefit from instruments such as the 2000 Race Equality Directive, which aims at combating racial discrimination in all areas of life, including employment, housing, education and health care, or more specific initiatives such as the EU Framework for National Roma Integration Strategies, which will be further discussed below. 35 36

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80  The human rights struggles of other groups affecting them. The ERTF, which brings together representatives of national Roma federations and international Roma organisations, decided in 2007 to prepare a draft charter on Roma rights which would serve as a basis for a (binding) European Charter on Roma Rights.41 Following discussions with national delegations and experts, the Charter was finally adopted in 2010.42 The long Preamble highlights the historically rooted grievances of the Roma, noting that these people have historically been victims of slavery, discrimination, racism, persecution, violence and genocide.43 It also emphasises the present deplorable conditions in which the Roma live and calls for respect for cultural diversity, including nomadism, and the end of all forms of discrimination and racism. The provisions of the Charter, 27 in total, deal with a variety of issues, including language (Article 13), media (Articles 11 and 14), education (Articles 12 and 15) and employment (Article 19). An important passage of the Preamble highlights that following a history of expulsions and exclusion, some Roma have chosen ‘the path of cultural self-determination and a travelling way of life’ that should be fully recognised and respected.44 It is also worth noting that some provisions of this instrument resemble those of the UNDRIP. For example, Article 8 affirms that the Roma should not be subjected to any form of genocide,45 while Article 10 refers to the prohibition of forced assimilation and destruction of culture.46 Furthermore, Article 6 affirms the right to self-determination by virtue of which the Roma have the right to freely promote their economic, social and cultural development, and cultivate their own cultural autonomy.47 The feasibility and advisability of creating a legally binding instrument on the rights of the Roma based on the ERTF Charter was discussed in 2013 by an ad hoc committee of the Council of Europe. Despite praising the ERTF’s efforts, the committee decided against the creation of such an instrument,

Annual report on European Roma and Travellers Forum Activities covering the period from 30 September 2008 to 30 October 2009, ANREP/ERTF/2009/CM/02, pp. 11 and 12, at www.ertf.org/images/stories/documents/ERTF_Annual_Report_2009.pdf (accessed 20 September 2015). 42 Annual report on European Roma and Travellers Forum Activities covering the period from 1 November 2009 to 30 September 2010, p. 4, at www.ertf.org/images/stories/documents/ ERTF_Annual_REP_2010_EN.pdf (accessed 20 September 2015). 43 Charter on the Rights of the Roma, at www.ertf.org/index.php/documents/charter-onthe-rights-of-the-roma (accessed 20 September 2015). 44 Ibid., preambular para. 16. 45 Cf. Article 7 of the UNDRIP, which affirms that ‘indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group’. 46 Cf. Article 8 of the UNDRIP, which affirms that ‘indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture’. 47 Cf. Article 3 of the UNDRIP, which affirms that ‘indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. 41

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The human rights struggles of other groups 81 emphasising instead the need to ‘ensure compliance with, and/or encourage speedy ratification of, existing instruments’.48 Certainly, the content of the Charter did not help to convince the committee of the merits of the proposal. The instrument contains provisions which are not always clear and specific, and is not written in conventional human rights jargon.49 That said, it was arguably the very idea of setting special standards regarding the rights of the Roma which did not find sufficient support among the committee’s members. In this sense, there is not much difference between the current international and European scenarios. 3.1  Integrating the Roma The lack of commitment to establish a special instrument on Roma rights is accompanied by the potentially problematic identification of integration as the one solution to the human rights problems faced by the Roma. This emphasis on integration is fully reflected in national as well as supranational policies. In Europe, for example, the European Commission has developed a framework to tackle the human rights situation of the Roma that aims precisely at promoting their integration into mainstream society.50 This focus on integration, however, does not seem to meet with favour from many members of the Roma community,51 and can be both practically and conceptually problematic. From a practical point of view, a common issue affecting policies relating to Roma integration seems to be that inclusionary strategies are often accompanied by exceptionally exclusionary practices that effectively nullify any effort made to improve the conditions of these people.52 Conceptually, it should not be forgotten that

Ad Hoc Committee of Experts on Roma Issues (CAHROM), 6th CAHROM Meeting, 28–31 October 2013. 49 Consider, for example, Article 4, which reads as follows:  ‘We Roma are a people equal to every other people in the world. We Roma live in every state of Europe and hereby declare ourselves to be a national minority in Europe without our own state or claim for a state.’ See also Article 6, which affirms that ‘we Roma have the right to self-determination in accordance with international law including: the right to cultivate one’s cultural autonomy, the right to freely promote our economic, social and cultural development and to select our partners, projects, and programmes on our own and, where appropriate, implement them as well; the right to decide on our representation free of any kind of obstruction or discrimination and to vote on it democratically. We refuse any kind of heteronomy; representations, experts or speakers on or behalf who are self-appointed or appointed by third parties.’ 50 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions:  An EU Framework for National Roma Integration Strategies up to 2020, Brussels, 5 April 2011, COM(2011) 173 Final. 51 For example, preambular para. 4 of the Charter on the Rights of the Roma, which was discussed above, reads as follows: ‘traditionally, we are regarded as a social fringe group, as a social problem that is to be integrated by means of disciplinary measures and state repression’. 52 M. Ram, ‘Europeanized Hypocrisy: Roma Inclusion and Exclusion in Central and Eastern Europe’ (2014) 13 Journal on Ethnopolitics and Minority Issues in Europe pp. 15–44, at p. 37. 48

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82  The human rights struggles of other groups a fine line separates integration from assimilation. In this sense, integration policies should not lose sight of the fundamental need to protect and promote the cultural identity of the Roma. This need, however, does not seem to rank very high among States’ priorities. For example, it has been noted that ‘the teaching of Roma languages, provisions for alternative schooling arrangements for children of travelling Roma families, access to caravan sites, and the general celebration of Roma cultural identity are not found in strong measure in European states’.53 Concerned about this lack of commitment, the SRMI expressly urged that poverty reduction policies should always go hand in hand with the protection and promotion of Roma identity, language and culture.54 That said, the fact that some States might perceive Roma cultural traditions, including nomadism, as a threat to their national cultural structures55 makes the achievement of this goal all the more difficult. These concerns, as suggested by Koutouki and Farget, might also be exacerbated by the fact that the Roma do not have or claim a territory that could symbolically represent the limits of their cultural claims.56 As a result, while less worried about questions of autonomy and secession, States are more preoccupied with the potential implications of the Roma’s cultural entitlements for the wider society. This situation inevitably becomes problematic in light of the well-known risks of conflating integration with assimilation. In this respect, the case of the International Labour Organization Convention on Indigenous and Tribal Populations (ILO 107) can be particularly instructive.57 ILO 107 was adopted in 1957 with the aim of protecting those indigenous peoples who were ‘not yet integrated into the national community and whose social, economic or cultural situation hinder[ed] them from benefiting fully from the rights and advantages enjoyed by other elements of the population’.58 Accordingly, the instrument sought to facilitate ‘their progressive

See also A. Nolan, ‘ “Aggravated Violations”, Roma Housing Rights and Forced Expulsion in Italy:  Recent Developments under the European Social Charter Collective Complaints System’ (2011) 11 Human Rights Law Review, pp. 343–361; and H. O’Nions, ‘Roma Expulsions and Discrimination:  The Elephant in Brussels’ (2011) 13 European Journal of Migration and Law pp. 361–388. 53 T. Ahmed, ‘The Many Vulnerabilities of the Roma and the European Legal Framework’ in F. Ippolito and S. Sanchez (eds), Protecting Vulnerable Groups: The European Human Rights Framework (Hart 2015) p. 144. 54 UN Roma Study 2015, para. 98. 55 According to Mirga and Gheorghe, for example, Roma are often seen as a ‘countercultural group that contests and even rejects the very norms and values of society’. A.  Mirga and N. Gheorghe, ‘The Roma in the Twenty-First Century: A Policy’ (1997), at www.per-usa. org/1997-2007/21st_c.htm (accessed 20 September 2015). 56 K. Koutouki and D. Farget, ‘Contemporary Regulation of Public Policy Participation of the Saami and Roma:  A  Truncated Process’ (2012) 10 International Journal on Minority and Group Rights pp. 427–451, at pp. 444 and 445. 57 ILO Convention No. 107 of 1957 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, at www.ilo.org/ ilolex/cgi-lex/convde.pl?C107 (accessed 20 September 2015). 58 Ibid., Preamble.

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The human rights struggles of other groups 83 integration into their respective national communities, and the improvement of their living and working conditions’.59 The fallacy of this approach, however, was fully exposed when the International Labour Organization Convention on Indigenous and Tribal Peoples in Independent Countries (ILO 169) replaced ILO 107 in 1989.60 As explained in the Preamble to ILO 169, the International Labour Organization resolved to replace ILO 107 because its ‘assimilationist orientation’ had become incompatible with relevant international human rights standards.61 Thus, rather than encouraging integration, the new convention recognised and respected cultural diversity. As a result, the word ‘integration’ disappeared from the text of ILO 169 altogether. From a moral perspective, it is clear that the historical forms of injustices suffered by the Roma,62 combined with their current poor living conditions, require urgent and resolute action on the part of the international community. Yet, in light of what has been said in the previous pages, it is also evident that international law has not done enough to protect and promote Roma rights in accordance with the needs and demands of these people. In particular, the lack of concrete efforts towards formulating targeted rights and the choice of integration as the one solution to the human rights problems faced by the Roma mark a significant difference in the way in which international law has thus far responded to the claims of indigenous peoples, on the one hand, and the Roma, on the other.

4.  The human rights of peasants For the purposes of international law, the term ‘peasant’ should be understood as referring to ‘any woman or man who engages in – or who seeks to engage in  – small-scale agricultural production for subsistence and/or for the market and who relies significantly, though not necessarily exclusively, on family or household labour and other non-monetized ways of organizing labour’.63 This definition encompasses smallholder farmers, landless people, Ibid. ILO Convention No. 169 of 1989 Concerning Indigenous and Tribal Peoples in Independent Countries, at www.ilo.org/public/english/indigenous (accessed 20 September 2015). 61 The passage of the Preamble reads as follows: ‘Considering that the developments which have taken place in international law since 1957, as well as developments in the situation of indigenous and tribal peoples in all regions of the world, have made it appropriate to adopt new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards.’ 62 As affirmed by the UN Human Rights Council, the Roma ‘have faced, for more than five centuries, widespread and enduring discrimination, rejection, social exclusion and marginalization all over the world’. Protection of Roma, Human Rights Council Resolution 26/4, UN Doc. A/HRC/26/L.11 (20 June 2014). 63 Article 1 of the Draft UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, Advanced Version (27 January 2015), at www.ohchr.org/Documents/ HRBodies/HRCouncil/WGPleasants/Session2/draftDeclaration.doc (accessed 20 September 2015). Article 1 continues: ‘(2) This Declaration applies to any person engaged 59 60

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84  The human rights struggles of other groups tenant farmers and agricultural labourers as well as people engaged in traditional fishing, hunting and herding activities.64 Peasants are among the most discriminated and vulnerable people in many parts of the world.65 For example, the World Food Programme has estimated that around half of the world’s hungry people are from smallholder farming communities, another 20 per cent belong to landless families dependent on farming and about ten per cent live in communities whose livelihoods depend on herding, fishing or forest resources.66 As highlighted by a 2012 study of the UN, lack of minimum wages and social protection, criminalisation of movements defending the rights of people working in rural areas and gender discrimination are all factors that contribute to the vulnerability of peasants.67 However, since peasants need lands in order to achieve an adequate standard of living, the most important causes of their vulnerability relate to access to land.68 For this reason, land rights represent a central claim of peasants, a circumstance which importantly connects the struggle of this group with that of indigenous peoples. This is even more true considering the cultural dimension that defines both indigenous peoples’ and peasants’ land claims. Indeed, like indigenous peoples, peasants maintain that the necessity to recognise and protect their (collective) rights to land is related not only to socio-economic issues but also to the fact that the special relationship that they have with Mother Earth ‘is the physical, cultural and spiritual basis for [their] existence’.69

in artisanal or small-scale agriculture, livestock raising, pastoralism, fishing, forestry, hunting and gathering, and handicrafts related to agriculture or a related occupation in a rural area. (3) This Declaration also applies to indigenous peoples working on the land, transhumant and nomadic communities and the landless. (4) This Declaration also applies to salaried workers, regardless of their legal status, on plantations and large farms and in agro-industrial enterprises.’ 64 Article 1(2) and (3). 65 Final study of the Human Rights Council Advisory Committee on the Advancement of the Rights of Peasants and Other People Working in Rural Areas, UN Doc. A/HRC/19/75 (24 February 2012) para. 73 (hereinafter the UN Study on the Rights of Peasants). 66 ‘Who are the Hungry?’ World Food Programme, at https://www.wfp.org/hunger/who-are (accessed 20 September 2015). 67 UN Study on the Rights of Peasants, para. 24. 68 Ibid. In this respect, it has been noted that the phenomenon of ‘land grab’, whereby governments and companies seek to buy and lease large tracts of productive land in other countries mainly for the purpose of industrial food and biofuels production, has exacerbated this already problematic situation. ‘Peasant Farmers and the Right to Food: A History of Discrimination and Exploitation’, prepared by Mr Jean Ziegler, Member of the Human Rights Council Advisory Committee, UN Doc. A/HRC/AC/3/CRP.5 (4 August 2009) para. 28. 69 ‘For peasants … the relationship with Mother Earth, her territories and waters is the physical, cultural and spiritual basis for our existence. We are required to maintain this relationship with Mother Earth for the survival of our future generations. We gladly assume our role as her guardians.’ Joint statement submitted by various peasant organisations at the Second Session of the Working Group on the Peasant Declaration, at http://viacampesina.org/en/index. php/main-issues-mainmenu-27/human-rights-mainmenu-40/peasants-right-resources/1 743-joint-statement-2nd-session-of-the-open-ended-intergovernmental-working-group-ona-un-declaration-on-the-rights-of-peasants (accessed 20 September 2015).

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The human rights struggles of other groups 85 Peasants’ rights emerged as an international legal question following a 2010 study on discrimination in the context of the right to food prepared by the advisory committee of the Human Rights Council.70 This study highlighted that in order to improve the realisation of the right to food and combat discrimination, special attention needed to be paid to the situation of the world’s peasants.71 A year later, the Human Rights Council requested its advisory committee to continue working on the issue of discrimination in relation to the right to food by undertaking a new study on ways and means to further advance the rights of people working in rural areas.72 The final version of this study, completed in 2012, made the important recommendation that the Human Rights Council should develop and adopt a new international human rights instrument on the rights of peasants.73 Acting on this recommendation, the Human Rights Council set up an open-ended intergovernmental working group with the mandate of negotiating and finalising a draft UN declaration on the rights of peasants and other people working in rural areas.74 At the time of writing, the working group has held two annual sessions, the first in July 2013 and the second in February 2015.75 The following discussion will provide an overview of the current version of this draft declaration. The first thing to note is that the advisory committee of the Human Rights Council not only recommended the adoption of a new international instrument on the rights of peasants but also annexed to its final study a declaration that could serve as a model for this new instrument.76 This declaration was, in turn, based on the Declaration of the Rights of Peasants – Women and Men77 adopted in 2008 by La Via Campesina, an international movement representing about 200 million farmers worldwide.78 It can therefore be said

UN Human Rights Council, Preliminary Study of the Human Rights Council Advisory Committee on Discrimination in the Context of the Right to Food, 22 February 2010, A/ HRC/13/32, para. 78 71 Ibid. 72 Resolution 13/4 of 14 April 2010, para. 44. 73 UN Study on the Rights of Peasants, para. 72. 74 UN Doc. A/HRC/RES/21/19. 75 See, Report of the Open-ended Intergovernmental Working Group on a draft United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas on its First Session, UN Doc. A/HRC/26/48 (11 March 2014), and Report of the Open-ended Intergovernmental Working Group on a draft United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas on its Second Session, UN Doc. A/ HRC/30/55 (22 July 2015). 76 UN Study on the Rights of Peasants, Annex. 77 La Via Campesina, Declaration of the Rights of Peasants  – Women and Men, adopted by the International Conference on the Rights of Peasants in Jakarta in June 2008, at http:// viacampesina.net/downloads/PDF/EN-3.pdf (accessed 20 September 2015). The final text of the Declaration was then formally endorsed in Seoul, in March 2009, by the International Coordination Committee of La Via Campesina. 78 http://viacampesina.org/en/index.php/organisation-mainmenu-44/what-is-la-viacampesina-mainmenu-45 (accessed 20 September 2015). For a discussion of La Via Campesina in global politics, see A. Desmarais, Globalization and the Power of Peasants: La Via Campesina (Pluto Press 2007). 70

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86  The human rights struggles of other groups that the declaration currently under discussion at the UN does take into account the voices of those it seeks to protect. There are important similarities between the UNDRIP and the present text of the peasant declaration.79 Like the UNDRIP, the latter combines economic and social rights, such as the rights to housing (Article 27), education (Article 28), water (Article 24) and health (Article 26), with civil and political rights, such as the rights to life and liberty (Article 7) and participation (Article 12). Furthermore, in accordance with the UNDRIP’s model, several peasants’ rights are framed as collective rights.80 Similarities also exist in respect of specific rights, including, for example, participatory rights and cultural rights applied to economic activities. Thus, Article 2 of the peasant declaration affirms that States shall obtain the FPIC of peasants before developing and implementing legislation and policies affecting their rights. Connected with this general principle, Article 5 establishes that no exploitation of the natural resources that peasants traditionally hold or use can take place without their FPIC. With regard to cultural rights and traditional economic activities, Article 21 of the peasant declaration follows the model of the UNDRIP (Article 20)81 in affirming the individual and collective right of peasants to use traditional ways of farming, fishing and livestock rearing. The most interesting parallels, however, relate to land rights. In particular, Article 20 essentially reproduces Article 29 of the UNDRIP when it affirms that peasants have the right to the conservation and protection of the environment and the productive capacity of their lands and resources, and requires that States shall take effective measures to ensure that no storage or disposal of hazardous materials or substances shall take place in the lands or territories of peasants without their FPIC.82 Similarly, Article 7 finds inspiration in Article 8 of the UNDRIP

Indeed, the advisory committee of the Human Rights Council expressly stated that the structure of its proposed declaration followed precisely that of the United Nations Declaration on the Rights of Indigenous Peoples. See UN Study on the Rights of Peasants, para. 72. 80 See, for example, Article 3(2): ‘Peasants … have the right to the full enjoyment, individually and collectively, of all human rights and fundamental freedoms recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and other international human rights instruments’; Article 3(3): ‘Peasants … have the right to be free from any kind of discrimination and any incitement to discrimination in the exercise of their rights, individually or collectively’; Article 10(2):  ‘Peasants, individually or collectively, have the right to expression of their local customs, languages, culture, religions, literature and art’; Article 19(1):  ‘Peasants … have the right, individually or collectively, to the lands, water bodies, coastal seas, fisheries, pastures and forests which they need in order to make from them an adequate standard of living, to have a place to live in security, peace and dignity and to develop their cultures’; Article 21(1): ‘[Peasants] have the right to use traditional ways of farming, fishing and livestock rearing, individually or collectively’; and Article 23(2): ‘Peasants, individually or collectively, have the right to conserve, maintain and develop agricultural biodiversity, and their right to associated knowledge, including in crops and animal races.’ 81 Cf. Article 20 of the UNDRIP, affirming that indigenous peoples have the right ‘to engage freely in all their traditional and other economic activities’. 82 Cf. Article 29 of the UNDRIP, affirming that ‘indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or 79

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The human rights struggles of other groups 87 to proclaim that States shall provide effective mechanisms for the prevention of, and redress for, any action which has the aim or effect of dispossessing peasants of their lands, territories or resources.83 The most important provision of the peasant declaration concerning land rights is also strictly connected with the UNDRIP. Thus, Article 19 confers on peasants the individual and collective right ‘to the lands, water bodies, coastal seas, fisheries, pastures and forests which they need in order to make from them an adequate standard of living, to have a place to live in security, peace and dignity and to develop their cultures’.84 Furthermore, it requests that States recognise the land tenure rights, including customary land tenure rights, of peasants so as to provide effective protection against forced eviction and arbitrary displacement.85 Finally, Article 19 also deals with the question of redress and restitution, notably another particularity of the UNDRIP, affirming that peasants have the right ‘to return to the land and have restored access to natural resources of which they were arbitrarily or unlawfully deprived, or to receive just and fair compensation when their return is not possible’.86 4.1  The (uncertain) future of the peasant declaration The fact that a declaration on the rights of peasants is currently under negotiation at the UN, and that this declaration contains ambitious provisions that are largely modelled on the content of the UNDRIP, suggests that international law is taking the demands of peasants seriously. That said, there are a number of important challenges that peasants will have to face in order to secure the adoption of a fair, adequate and legally influential instrument protecting and promoting their rights. First, several provisions included in

territories and resources’ and that ‘States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent’. 83 Cf. Article 8(2)(b) of the UNDRIP, establishing that ‘States shall provide effective mechanisms for prevention of, and redress for any action which has the aim or effect of dispossessing [indigenous peoples] of their lands, territories or resources’. 84 Cf. Article 25 of the UNDRIP, affirming that ‘indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard’, and Article 26(1), stating that ‘indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired’. 85 Cf. Article 26(3), affirming that ‘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’. 86 Cf. Article 28 of the UNDRIP, affirming that ‘indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent’.

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88  The human rights struggles of other groups the current version of the text, such as those referring to a right to seed (Article 22), a right to biodiversity (Article 23) and a right to productive resources (Article 21), appear controversial. The provisions on land rights discussed above have also been the subjects of important polemics. Perhaps not surprisingly, during early debates on the content of this declaration, the US noted that this instrument ‘enumerates new rights, [many of which] are not human rights … held and enjoyed by individuals and that every individual may demand from his or her own government’.87 European Union (EU) States have also been rather critical of this instrument, commenting collectively that several rights claimed by peasants do not exist under international law and that existing human rights instruments are sufficient for the promotion and protection of the rights of this group.88 Considering that both the US and all the EU members of the Human Rights Council had voted against the very establishment of the working group tasked with the preparation of the peasant declaration, it would be wrong to dismiss these initial objections as simple negotiating tactics.89 This suggests that peasants will face a particularly challenging task in persuading these reluctant States to embrace their controversial claims. Second, as detailed in Chapter 3, not all soft law instruments have real potential to become legally influential in their respective areas of concern, with important implications for their capacity to make a visible impact on the ground. In this respect, it remains to be seen, inter alia, whether the peasant declaration will receive considerable international support, and whether it will operate within an effective institutional setting capable of monitoring and promoting compliance with it. Will, for example, a specific UN body be set up with the task of monitoring the implementation of this declaration or will existing bodies, e.g. generic Special Rapporteurs, be entrusted with such responsibility in the context of their broader mandates? Another fundamental question relates to the fact that many provisions of the peasant declaration encompass socio-economic rights. This is worth mentioning because these rights

The relevant statement can be found at www.ohchr.org/en/NewsEvents/Pages/Display News.aspx?NewsID=12596&LangID=E#sthash.Ujc4jmtb.dpuf (accessed 20 September 2015). 88 The relevant statement can be found at http://eeas.europa.eu/delegations/un_geneva/ documents/eu_statments/human_right/hr_rightofpeasants_final_eu_stmt.pdf (accessed 20 September 2015). 89 Human Rights Council Resolution 21/19, UN Doc. A/HRC/RES/21/19 (11 October 2012). Adopted by a recorded vote of 23 to 9, with 15 abstentions. The voting was as follows:  in favour:  Angola, Bangladesh, Benin, Burkina Faso, Cameroon, Chile, China, Congo, Costa Rica, Cuba, Djibouti, Ecuador, Guatemala, India, Indonesia, Kyrgyzstan, Malaysia, Peru, the Philippines, the Russian Federation, Thailand, Uganda and Uruguay; against: Austria, Belgium, the Czech Republic, Hungary, Italy, Poland, Romania, Spain and the USA; abstaining: Botswana, Jordan, Kuwait, Libya, the Maldives, Mauritania, Mauritius, Mexico, Nigeria, Norway, Qatar, the Republic of Moldova, Saudi Arabia, Senegal and Switzerland. 87

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The human rights struggles of other groups 89 are sometimes referred to as ‘aspirations’ rather than legal entitlements, with potential implications for their justiciability and, ultimately, effectiveness.90 In this sense, it will be important to see whether the final provisions of the peasant declaration will be clear and realistic enough to work in practice. In light of the above, it is clear that one should not rush to conclude that international law is likely to provide a valid response to the claims of peasants simply because the latter’s voice is being currently heard. Instead, the above discussion has shown the important difficulties that peasants will face in their international quest for justice. One concrete risk, in particular, is that, like the case of the Minority Declaration, the final version of the peasant declaration will fail to meet the central demands of its beneficiaries. This is a strong reminder that human rights claims, especially those which deeply affect States’ political and economic interests, can hardly be expected to be automatically validated under international law.

5.  Conclusions This chapter has provided an overview of the human rights struggles of three groups that make similar claims to those of indigenous peoples, and share with the latter important characteristics, with a view to establishing whether the adoption of the UNDRIP reflects a broader trend in international law towards accommodating the demands for justice of disempowered and vulnerable groups. Homeland minorities, that is, culturally distinct groups with a historical connection to their homelands, were the first group to be considered. In order to remedy unjust historical distributions of sovereign power and/or ending ongoing forms of domination and oppression, homeland minorities often demand the re-organisation of the national power structure, as reflected in their radical claims for self-determination and autonomy. However, concerned about their territorial integrity, political unity and financial stability, States have been traditionally reluctant to embrace the principal political demands of these groups. Thus, the Minority Declaration, that is, the central instrument on minority rights in international law, has conferred on homeland minorities generic rights to culture, language and religion, but has refrained from affirming more substantial rights such as the rights to self-determination and autonomy. This is in stark contrast with the more progressive approach taken by the UNDRIP, which, as seen in Chapter 2, has recognised both a

For a discussion, see R. Bard, ‘The Right to Food’ (1985) 70 Iowa Law Review pp. 1279–1291; M. Robinson, ‘Advancing Economic, Social, and Cultural Rights:  The Way Forward’ (2004) 26 Human Rights Quarterly pp. 866–872; P. Alston and G. Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly pp. 156–229; UN Committee on Economic, Social and Cultural Rights, General Comment No. 3: The Nature of States Parties’ Obligations, UN Doc. E/1991/23 (14 December 1990).

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90  The human rights struggles of other groups right to self-determination and a right to autonomy to indigenous peoples. Significant differences also exist in the way in which international law has responded to the demands for justice of indigenous peoples and the Roma. There is no doubt that the latter have suffered historical and grave forms of injustice. Wherever they live, the Roma presently face common patterns of discrimination and marginalisation and live in conditions of severe material deprivation. In contrast to the case of indigenous peoples, who demanded and obtained the creation of an ad hoc instrument devoted to the protection and promotion of their rights, requests for the creation of a special instrument on Roma rights, which would be able to deal with the specific challenges faced by this group, have thus far proved unsuccessful. Instead of focusing on the formulation of targeted rights, States have placed increasing emphasis on the necessity to integrate the Roma into wider society, a trend that has been particularly visible in Europe. However, while the protection and promotion of a group’s cultural identity is key to the realisation of any positive integration model, States have not shown a strong commitment towards this important goal, raising significant concerns about the risk of conflating integration with assimilation. The above discussion tends to discount the view that the adoption of the UNDRIP may reflect a visible trend in international law towards fairly accommodating the human rights claims of disempowered and vulnerable groups, especially when the latter make demands that challenge the political and/or cultural structures of the affected States. At this stage, by contrast, it is not possible to draw definitive conclusions as to the outcome of the human rights struggle of peasants, that is, the third group that was examined in this chapter. Peasants were included in this discussion because of their important similarities with indigenous peoples. In particular, land rights represent central claims of both indigenous peoples and peasants. Crucially, both groups define their land claims in cultural terms, accentuating their special (cultural) relationship with nature. As illustrated in this chapter, the fact that a peasant declaration is currently being discussed at the UN level indicates that peasants’ requests are being taken seriously. However, early negotiations have already revealed the important obstacles that peasants will face in their quest for justice. In light of both the controversial character of several provisions of the peasant declaration and the contextual opposition of a number of States, doubts exist as to whether the final version of this declaration will fairly and adequately respond to the demands and concerns of this group or whether, by contrast, it will mirror the Minority Declaration’s failure to fully embrace the claims and aspirations of its beneficiaries. Considering the discussions in Chapter 3 on the legal status of the UNDRIP, another important question refers to the legal force and compliance pull of a peasant declaration, namely something that cannot be taken for granted. In a fundamental sense, then, the latter questions serve as strong reminders that international law cannot be expected to automatically validate challenging human rights claims.

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Part III

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5 The political power of the global indigenous movement

1.  Introduction The fact that other groups have not been able to emulate the legal achievements of indigenous peoples despite advancing similar claims and sharing important features with them suggests that the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration) does not reflect a broader trend in international law aimed at supporting the demands for justice of disempowered and vulnerable groups. What, then, can explain this relatively unique development in the sphere of international law? A cynical explanation for the establishment of the UNDRIP would be that this instrument could be adopted simply because it did not pose a significant threat to the interests of the affected States. Such an interpretation, reminiscent of rationalist thinking in International Relations,1 finds some support in the discussion developed in Chapter 4. As suggested there, a plausible explanation for the failure of the United Nations Minority Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities2 (Minority Declaration) to validate the claims for self-determination and autonomy advanced by homeland minorities is that, given that some of these minorities have secessionist agendas and/or live in particularly rich regions, States are too concerned about the potential implications of these rights for their territorial integrity, political unity and/or financial stability, to openly endorse them. By contrast, one could argue, the UNDRIP endorsed the claims of indigenous peoples for self-determination and autonomy precisely because the vast majority of indigenous peoples

Rationalism is one of the major post-war schools of thoughts in International Relations. A variety of approaches to the study of International Relations can be included within the rationalist stream. In general terms, however, the rationalist paradigm can be said to posit that States are rational and self-interested actors, and that they are committed principally to the pursuit of their pre-defined (material) interests. For an overview, see D. Snidal, ‘Rational Choice and International Relations’ in W. Carlsnaes, T. Risse and B. Simmons (eds), Handbook of International Relations (2nd edn, Sage 2013) pp. 85–111. 2 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN General Assembly Resolution A/RES/47/135 (3 February 1992). 1

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94  The political power of the indigenous movement do not seek independence and also tend to be among the poorest in their respective States. Chapter  4 also alluded to the (concrete) possibility that States are too concerned about the implications of embracing Roma cultural rights for the wider society to agree to articulate targeted rights aimed at, inter alia, protecting and promoting the cultural identity of this group. Conversely, it could be argued, indigenous peoples’ cultural claims could be more easily accommodated because, among other things, they are both symbolically and practically confined by the territorial dimension of indigenous peoples’ rights. There is some truth in these propositions in the sense that, as far as certain specific rights are concerned, the claims of groups such as homeland minorities and the Roma might be said to pose a bigger threat to States than those of indigenous peoples. However, this cannot be taken to suggest that indigenous peoples’ rights, as ultimately defined in the UNDRIP, do not have significant (negative) repercussions for the affected States. One simple example will illustrate this point. As discussed in Chapter 2, the cultural identity of indigenous peoples can only be properly protected by respecting the special relationship that these groups have with their ancestral lands. The full consequences of this connection can only be appreciated when the question of natural resources pertaining to indigenous lands is considered. The UNDRIP does not confer on indigenous peoples an express right to own these resources. However, indigenous peoples are entitled, in light of their right to self-determination, to freely pursue their economic, social and cultural development, which relates to, inter alia, the use of their lands. In this context, the principle of free, prior and informed consent (FPIC) establishes that no activity affecting the ancestral lands of indigenous peoples can be carried out in the absence of the latter’s consent. As explained in Chapter 2, this important principle implies that, under certain circumstances, indigenous peoples may even be entitled to veto governmental projects related to their lands, thus impairing States’ ability to control natural resources for the purpose of national development. This alone suggests that any representation of the UNDRIP as an instrument that does not affect the primary political and economic interests of States would be seriously misconceived. Indeed, some have gone so far as to suggest that ‘more is at stake, economically and politically, in [the UNDRIP] than perhaps [in] any other human rights instrument [that has been adopted] since the [two] International Covenants of Human Rights’.3 There is certainly some truth in this strong statement.

E. Daes, ‘Dilemmas Posed by the UN Draft Declaration on the Rights of Indigenous Peoples’ (1994) 63 Nordic Journal of International Law pp. 205–212, at p. 211. The two covenants referred to in this quote are the International Covenant on Civil and Political Rights (16 December 1966, United Nations, Treaty Series, vol. 999, p.  171) and the International Covenant on Economic, Social and Cultural Rights (16 December 1966, United Nations, Treaty Series, vol. 993, p. 3). Together with the Universal Declaration of Human Rights, they comprise what is often referred to as the ‘International Bill of Human Rights’.

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The political power of the indigenous movement 95 Taken together, the central provisions of the UNDRIP that were discussed in Chapter 2 significantly enhance the (collective) power of indigenous peoples vis-à-vis States, leading to an inevitable reduction in the scope of the latter’s sovereign powers. States were obviously concerned about this scenario. Had this not been the case, they would have simply embraced the claims of indigenous peoples instead of trying relentlessly, though largely unsuccessfully, to oppose and challenge them.4 In light of the above, the UNDRIP should be described as the outcome of a complex and unique human rights struggle,5 notably one that saw indigenous peoples actively engaged in trying to persuade States to endorse particularly challenging rights and principles.6 Accordingly, the focus of this and the next chapter will be on examining the dynamics, factors and circumstances that characterised this unique struggle with a view to shedding some light on the broader question of the potential, and limits, of international law as an instrument of justice. In particular, this chapter will focus on the participation of indigenous peoples in the drafting of the Declaration, suggesting that indigenous representatives enjoyed an atypically high level of political power, with important consequences for their capacity to make their voice count at the negotiating table. By analysing the features of the global coalition of indigenous peoples through a social movement lens, the following discussion

At the same time, they sought to limit the legal effects of the emerging indigenous rights regime by adopting a soft law instrument rather than a treaty. As discussed in Chapter 3, however, there are ways in which a soft law instrument can evolve to become a highly influential legal text in the international system. 5 On the concept of human rights as the outcome of political and social struggles, see R. Morgan, Transforming Law and Institution: Indigenous Peoples, the United Nations and Human Rights (Ashgate 2011) pp. 36–42; N. Stammers, ‘Social Movements and the Social Construction of Human Rights’ (1999) 21 Human Rights Quarterly pp. 980–1008; and J. Donnelly, ‘The Social Construction of International Human Rights’ (2011) 17 Relaciones Internacionales pp. 183–184. For a broader discussion of the historical link between human rights and social movements, see N. Stammers, Human Rights and Social Movements (Pluto Press 2009). 6 The idea of non-State actors persuading States to embrace new human rights claims is borrowed from the ‘norm life cycle’ model developed by constructivist scholars Finnemore and Sikkink. According to this model, international norms evolve in a three-stage ‘life cycle’ of emergence, norm cascade and internalisation. First, a new norm emerges as a result of the activity of norm entrepreneurs, normally representatives of civil society. At this stage, persuasion is the dominant mechanism. When a critical mass of states is persuaded to embrace the new norm, the latter reaches the so-called ‘tipping point’, paving the way for the second stage of the cycle. Most typically, international legal validation is necessary to reach this threshold. In the second phase, an increasing number of States begin to adopt the new norm. International socialisation, which is aimed at gradually transforming norm breakers into norm followers, characterises this period. Lastly, the norm becomes widely accepted and is internalised by all relevant actors, achieving a ‘taken-for-granted’ quality that makes compliance almost automatic. See M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization pp. 887–917. On the concepts of persuasion and communication, see also T. Risse, ‘ “Let’s Argue!”: Communicative Action in World Politics’ (2000) 54 International Organizations pp. 1–39. 4

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will draw attention to the key sources of this political power, namely the coalition’s global dimension, its collective identity and its ability to skilfully exploit the opportunities for engagement provided by the international legal system.

2.  Indigenous peoples as participants of international law: a social movement framework It is difficult to position indigenous peoples within existing categories of participants of international law.7 Indigenous peoples are and see themselves as ‘peoples’, or ‘nations’, aspiring to equal status with other nation States on the international plane. Accordingly, the State paradigm would prima facie represent the ideal lens through which to examine their participation in the international legal system. However, it is apparent that indigenous peoples do not possess the features and prerogatives that States enjoy in international law, thus making it inappropriate to approach the question of their international ‘status’ from a State-centric perspective. In many important ways, the civil society narrative promises to better capture the essence of indigenous peoples’ participation in international law. By focusing on the role of non-State actors in international norm-building, this narrative challenges the image of a State-dominated international legal system, drawing attention to the avenues that non-State actors can exploit in order to promote people-centred interests in international law. In this sense, there are important synergies between the world of civil society and that of indigenous peoples.8 That said, inasmuch as the concept of ‘civil society’ is understood as referring to the ‘associations of citizens (outside their families, friends and businesses) entered into voluntarily to advance their interests, ideas and ideologies’,9 it inevitably fails to grasp the reality of indigenous peoples’ action and identity. This point was emphatically highlighted by one indigenous representative during a 2010 seminar concerning indigenous peoples’ participation in the Organization of

This chapter will refer to actors or participants of international law without engaging with the question of international legal personality. On the utility of this approach, see R. Higgins, Problems and Process: International Law and How We Use it (Clarendon Press 1995) p.  50. For a discussion of the international legal personality of indigenous peoples, see A. Meijknecht, Towards International Personality:  The Position of Minorities and Indigenous Peoples in International Law (Intersentia 2001). For a specific discussion of the participation of indigenous peoples in international law-making, see L. Miranda, ‘Indigenous Peoples as International Lawmakers’ (2014) 32 University of Pennsylvania Journal of International Law pp. 203–263. 8 For a discussion of potential overlaps, see B. de Sousa Santos and C. Rodríguez-Garavito (eds), Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge University Press 2005). 9 ‘We the Peoples: Civil Society, the United Nations and Global Governance’, Report of the Panel of Eminent Persons on United Nations–Civil Society Relations, UN Doc. A/58/817 (11 June 2004) 13. 7

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The political power of the indigenous movement 97 the American States’ system: ‘we’, he affirmed, ‘are not civil society; we are peoples, as recognised by international law’.10 Against this background, the description of the global coalition of indigenous peoples as a global social movement appears to be the most appropriate.11 Generally speaking, social movements can be said to be part of a broadly defined concept of civil society, notably one which would include community-based organisations, independent unions, advocacy groups, non-governmental organisations (NGOs) and transnational networks. Yet, social movements retain unique features within the civil society world. Diani and Bison have defined social movements as ‘networks of informal interactions between a plurality of individuals, groups, or associations, engaged in a political or cultural conflict, on the basis of a shared collective identity’.12 Projecting this definition beyond national boundaries, Morgan has described a global social movement as: An action system comprised of interacting networks of individuals, groups, and organizations located around the world and working on the trans-world plane in pursuit of far-reaching social or political change, predominantly by means of collective protest and on the basis of a shared collective identity.13 These definitions14 reveal that the concept of social movement, like that of civil society, has little to offer to indigenous peoples inasmuch as the latter aspire to equal status with other nation States. Yet the basic features of social movement activism are particularly relevant to indigenous peoples. For example, social movements pursue unconventional and far-reaching goals typically aimed at challenging the existing status quo,15 their activities and constituencies are

Declaration of the Indigenous Peoples’ Representatives in the Framework of the Seminar on the Mechanisms of Indigenous Peoples Participation in the Organization of American States, p. 14, at  www.oas.org/en/sla/dil/docs/indigenous_peoples_publications_participation_interamerican_system.pdf (accessed 20 September 2015). 11 For a general discussion of social movements, see R. Cohen and S. Rai (eds), Global Social Movements (Athlone Press 2000); and D. Della Porta and M. Diani, Social Movements: An Introduction (2nd edn, Blackwell Publishing 2006). 12 M. Diani and I. Bison, ‘Organizations, Coalitions, and Movements’ (2004) 33 Theory and Society pp. 281–309, at p. 282. 13 R. Morgan, ‘On Political Institutions and Social Movement Dynamics:  The Case of the United Nations and the Global Indigenous Movement’ (2007) 28 International Political Science Review pp. 273–292, at p. 277. 14 For alternative definitions, see, among others, C. Tilly, ‘Social Movements and National Politics’ in C. Bright and S. Harding (eds), Statemaking and Social Movements (University of Michigan Press 1984) pp. 297–317, at p. 306; and D. Snow, S. Soule and H. Kriesi, The Blackwell Companion to Social Movements (Blackwell 2004) p. 11. 15 As noted by Tarrow, the growing expertise in lobbying, legal challenges and public relations among movements’ leaders has not altered the fundamental nature of social movements, whose most characteristic actions ‘continue to be contentious challenges’. S. Tarrow, Power in 10

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(often) global in character,16 and, most importantly, they tend to operate on the basis of a shared collective identity.17 As the following discussion will highlight, these features aptly describe the nature and action of the global alliance of indigenous peoples. It is for this reason that the social movement framework may provide a useful lens through which to analyse the global mobilisation of indigenous peoples and, in turn, better understand the sources of the political power enjoyed by indigenous representatives during the drafting of the UNDRIP.

3.  The global dimension of the indigenous movement Indigenous representatives operate within the structures of global institutions such as the United Nations (UN), and pursue political and legal goals, mainly associated with the protection and promotion of their rights and defined in international law terms, which are global in scope. More importantly, the movement is constituted by indigenous communities and organisations located in every corner of the world. These combined factors define the movement’s global character, which today represents one of the latter’s most distinguishing features. This, however, was not always the case, as the global expansion of the indigenous movement was both a gradual and challenging process.18 The first successful attempts to create indigenous networks beyond national borders were made in the early 1970s.19 In 1973, for example, the

Movement: Social Movements and Contentious Politics (3rd edn, Cambridge University Press 2011) p. 10. 16 This is so because the challenges connected with globalisation and a globalised world increasingly require global rather than domestic responses. For a broader discussion, see Cohen and Rai (eds), Global Social Movements, supra note 11, pp. 2–10; D. Della Porta, M. Andretta, L. Mosca and H. Reiter, Globalization from Below: Transnational Activists and Protest Networks (University of Minnesota Press 2006) pp. 1–26. 17 For a discussion, see C. Fominaya, ‘Collective Identity in Social Movements: Central Concepts and Debates’ (2010) 4 Sociology Compass pp. 393–404. 18 Indeed, tensions were often perceivable during the first encounters between indigenous groups from different regions. For example, Dahl has reported that mutual scepticism characterised the first meeting between indigenous peoples from the Americas and Scandinavian countries in the mid-1970s. More generally, it has been noted that some indigenous leaders, especially from the Americas, initially doubted that the advantages of extending the category of ‘indigenous peoples’ to other regions of the world would outweigh the relative disadvantages. See, respectively, J. Dahl, The Indigenous Space and Marginalized Peoples in the United Nations (Palgrave Macmillan 2012) p.  24; and B. Kingsbury, ‘ “Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy’ (1998) 92 American Journal of International Law pp. 414–457, at p. 447. 19 See J. Anaya, Indigenous Peoples in International Law (2nd edn, Oxford University Press 2004) pp. 56–57; A. Brysk, From Tribal Village to Global Village:  Indian Rights and International Relations in Latin America (Stanford University Press 2000) Chapter 2; and F. Wilmer, The Indigenous Voice in World Politics (Sage 1993) p. 18. It should also be noted that, in 1956, the Nordic Saami Council brought together the Saami living in Norway, Sweden and Finland. However, the geographical limitation of the project is self-evident.

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The political power of the indigenous movement 99 representatives of the Canadian Inuit, the National Indian Brotherhood of Canada, and the Saami of Finland, Norway and Sweden gathered in Copenhagen for the first Arctic Peoples Conference. More importantly, in 1975 the first conference of the World Council of Indigenous Peoples was held in British Columbia, Canada. Indigenous delegates from Argentina, Australia, Bolivia, Canada, Colombia, Ecuador, Finland, Greenland, Guatemala, Mexico, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Sweden, the USA and Venezuela attended the event, sharing information, exchanging ideas and seeking common solutions to what began to appear common problems. As will be further discussed in the next section, the creation of the World Council of Indigenous Peoples signalled in many important ways the first real attempt to establish a global movement of indigenous peoples. A few years later, two international conferences organised in the context of the UN (first) Decade for Action to Combat Racism and Racial Discrimination (1973–1982) marked the more formal entry of indigenous peoples into the international political scene.20 The first event, held in 1977, was the International NGO Conference on Discrimination against Indigenous Populations in the Americas. Hailed as ‘one of the most important events leading up to the establishment of the Working Group on Indigenous Populations’ (WGIP),21 that is, the UN body which, as discussed in Chapter 3, produced the first draft of the indigenous declaration, this conference was attended by over 250 participants, including representatives of over 60 indigenous peoples, international NGOs, UN agencies and States. The second conference, held in 1981, focused on the crucial issue of indigenous land rights and saw the participation of more than 300 people from a broad range of indigenous and non-indigenous organisations.22 Although by that time the movement had clearly become international, it had yet to reach every region of the globe. Things, however, would soon change. In 1984, indigenous representatives from the Chittagong Hill Tracts in Bangladesh officially attended the 3rd session of the Working Group on Indigenous Populations,23 followed a year later by representatives of the

J. Barreiro, ‘Geneva, 1997: A Report on the Hemispheric Movement of Indigenous Peoples’ in Akwesasne Notes (ed.), Basic Call to Consciousness (Book Publishing Company 2005) pp. 55–78; and R. Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (University of California Press 2003) pp. 44–45. For an account of these events, see A. Diaz, ‘How Indigenous Peoples’ Rights Reached the UN’ in C. Charters and R. Stavenhagen (eds), Making the Declaration Work:  The United Nations Declaration on the Rights of Indigenous Peoples (IWGIA 2009) pp. 16–31. 21 A. Eide, ‘From Prevention of Discrimination to Autonomy and Self-Determination:  The Start of WGIP, Achievements Gained and Future Challenges’ in R. Dunbar-Ortiz, D. Sambo Dorough, G. Alfredsson, L. Swepston and P. Wille (eds), International Law: Emergence and Application (IWGIA 2015) pp. 98–121, at p. 101. 22 Ibid., p. 103. 23 Report of the Working Group on Indigenous Populations on its Third Session, UN Doc. E/ CN.4/Sub.2/1984/20 (8 August 1984) para. 10. 20

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100  The political power of the indigenous movement Cordillera Peoples Alliance from the Philippines.24 A  few years later, other Asian indigenous groups such as the Ainu from Japan, the Naga from India, the Chin from Burma and the Karen from Thailand would also be represented at these meetings.25 Subsequently, the presence of Asian indigenous organisations grew constantly to the extent that they have now become an important component of the global indigenous movement.26 Over time, African indigenous groups such as the Twa from Rwanda, the San from Southern Africa and the Ogoni from Nigeria also began to join the coalition,27 following the steps of pioneer communities such as the Masai from Kenya.28 African indigenous groups have gradually increased their presence in the movement, although, today, their status cannot be compared to that of the Asian and American blocs. Finally, the inclusion of various representatives of the ‘small numbered peoples’ from the Russian Federation further expanded the geographical dimension of the indigenous coalition. All these developments have gradually conferred a truly global character on the indigenous movement. For example, it is reported that the 1999 session of the WGIP was attended by indigenous groups and organisations from South and Central America (46), Asia (40), the USA and Canada, (31), Africa (23), Australia (9), Russia (6), the Pacific (5) and Scandinavia (2).29 Today the global character of the movement is aptly reflected in the sub-division of the global indigenous caucus30 into seven regional caucuses referring, respectively, to: Africa; the Arctic; Asia; Central and South America and the Caribbean; North America; the Pacific; and Central and Eastern Europe and the Russian Federation, Central Asia and Transcaucasia.

Report of the Working Group on Indigenous Populations on its Fourth Session, UN Doc. E/ CN.4/Sub.2/1985/22 (27 August 1985) para. 9. 25 A. Eureti, ‘The Internationalisation of the Concept of Indigenous Peoples’ in S. Allen and A. Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart 2011) pp. 93–120. 26 This is confirmed by the fact that Victoria Tauli Corpuz, an influential indigenous leader from the Philippines, was appointed as indigenous chairperson (2005–2010) of the UN Permanent Forum on Indigenous Issues and is at the time of writing the UN Special Rapporteur on the Rights of Indigenous Peoples. For more information, see www.ohchr. org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx (accessed 20 September 2015). 27 A. Muehlebach, ‘ “Making Place” at the United Nations:  Indigenous Cultural Politics at the U.N. Working Group on Indigenous Populations’ (2001) 16 Cultural Anthropology pp. 415–448, at p. 420. 28 See the statement of Moringe Parkipuny speaking on behalf of KIPOC (a national indigenous organisation that promotes indigenous rights in Kenya) in A. Ewen (ed.), Voice of Indigenous Peoples: Native People Address the United Nations (Clear Light 1994) pp. 77–81. 29 As reported by Muehleback in her analysis of the geographical background of the almost 1,000 participants to the 1999 session of the group: Muehleback, ‘ “Making Place” at the United Nations’, supra note 27. 30 The importance of the global caucus in the functioning of the indigenous movement will be discussed in section 5 below. 24

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The political power of the indigenous movement 101 This geographical and, consequently, numerical expansion had important implications for the political power of the indigenous movement. As explained by Tilly, numbers are one of the fundamental factors in determining the power and success of a movement.31 This is so because the more people mobilise and make common claims, the more States and international institutions will be called into question and feel pressured to provide adequate responses. Considering that estimates put the number of indigenous people, spread across 70 countries worldwide, at around 370 million,32 the positive implications of reaching every corner of the globe are self-evident. That said, any process of expansion risks undermining the cohesion of a movement. In this respect, a fundamental principle highlighted by Della Porta and Diani is that ‘collective action cannot occur in the absence of a “we” characterized by common traits and a specific solidarity’.33 Among other things, this suggests that high numbers alone cannot guarantee power and success. Indeed, the preservation of a common identity and the capacity to remain united in spite of evident differences are both crucial to the effectiveness of a social movement.

4.  The indigenous identity It is clear that the world’s indigenous peoples do not constitute a monolithic group. As recognised by the Declaration, their situation and background vary not only from region to region but also from country to country.34 In particular, they display different cultural and historical characteristics that are deeply rooted in their respective local contexts.35 In this sense, localism is a constitutive element of the indigenous movement. That said, how could the local and global dimensions of the indigenous movement be constructively conciliated? Or, put differently, how could indigenous peoples unite around an idea of shared collective identity in light of the above-mentioned differences? Social movement scholars provide an answer to this question. According to Della Porta and Diani, processes of ‘identity construction’ form an

C. Tilly, ‘Social Movements as Historically Specific Clusters of Political Performances’ (1993–1994) 38 Berkeley Journal of Sociology pp. 1–30. 32 See, for one, ‘Who are Indigenous Peoples?’, Indigenous Voices Factsheet, UN Permanent Forum on Indigenous Issues, at www.un.org/esa/socdev/unpfii/documents/5session_ factsheet1.pdf (accessed 20 September 2015). 33 Della Porta and Diani, Social Movements:  An Introduction, supra note 11, p.  94. Or, in Tarrow’s words, ‘leaders can only create a social movement when they tap more deep-rooted feelings of solidarity or identity’: Tarrow, Power in Movement, supra note 15, p.11. 34 ‘Recognizing that the situation of indigenous peoples varies from region to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration.’ Preambular para. 23. 35 A. Taiaiake, Peace, Power, Righteousness: An Indigenous Manifesto (Oxford University Press 1999) p. 88. 31

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102  The political power of the indigenous movement integral part of the very existence of social movements.36 This means that the latter are directly involved in shaping their own collective identity. As observed by Brysk, social movements not only advance claims, but also ‘build new ways of understanding themselves’.37 Thus, indigenous peoples have shaped ‘the common elements of indigenous identity’38 that have come to represent the core of the movement. As pointed out by Kingsbury, this was not a unidirectional process. Rather, as indigenous peoples shaped an identity-driven concept of ‘indigenous people’, they were in turn shaped by it.39 Local identities were not erased by this process; rather, they were projected on a (broader) global dimension. This is not uncommon among social movements. Della Porta and Diani have explained that recognising the value of a ‘common identity’ should not lead to neglecting the existence, and importance, of forms of multiple identities within the same movement.40 Therefore, as long as a ‘common identity’ is shared by all the members, the fact that parallel internal identities may also exist does not necessarily weaken the strength of a movement. But what are the key elements of this common identity? According to Taiakake, the sense of collective identity among indigenous peoples derives from the fact that they ‘understand [other indigenous peoples] to be part of the same category of peoples opposed to the injustice faced in their own lives’.41 Crucially, the coexistence of a local and global dimension within the movement is fully acknowledged in Taiakake’s analysis. In his view, the indigenous movement is ‘founded on a common background’, so that although ‘each community will have its own tactics and strategies [developed within the framework of their local identities] … the foundations of the movement and the driving force behind it are shared by almost all indigenous people’.42 This point is regularly emphasised by indigenous representatives, as the following quote exemplifies: Despite the many regions of the world that we represent and the variety of cultures we command, [we] worldwide struggle in the same arena: for preservation of our land base, the environment, religious freedom, culture, and language.43

Ibid., p. 93. Brysk, From Tribal Village to Global Village, supra note 19, p. 35. 38 Ibid., p. 57. 39 Kingsbury, ‘ “Indigenous Peoples” in International Law’, supra note 18, p. 415. 40 Della Porta and Diani, Social Movements: An Introduction, supra note 11, p. 98. 41 Taiaiake, Peace, Power, Righteousness, supra note 35, p. 87. 42 Ibid. 43 The Native American Council of New York City, ‘Introduction: An Indigenous Worldview’ in Ewen (ed.), Voice of Indigenous Peoples, supra note 28, p. 24. 36 37

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The political power of the indigenous movement 103 Interestingly, ideas of common values and interests informed the very first efforts to create an international indigenous movement. In 1971, the Minister of Indian Affairs of Canada visited New Zealand and Australia as part of a process of re-examination of Canadian policies on indigenous peoples. Among others, he was accompanied by George Manuel, the president of a national indigenous organisation, namely the National Indian Brotherhood of Canada, which would soon become a leading force behind the establishment of the World Council of Indigenous Peoples (discussed earlier in this chapter). It is reported that, returning from the visits in New Zealand and Australia, Manuel expressed his hope that: The common history and shared values that we discovered in each other are only the seeds from which some kind of lasting framework can grow for a common alliance of Native Peoples.44 These proved to be prophetic words. Today the indigenous movement derives part of its strength precisely from the fact that the values embedded within indigenous communities and cultures are essentially shared values. A fundamental element of this indigenous identity is certainly the special relationship that indigenous peoples have with their ancestral lands.45 This relationship, which is at the core of indigenous societies,46 has social, cultural, spiritual, economic and political dimensions.47 Indeed, as noted by the Inter-American Court of Human Rights (IACtHR), traditional lands and natural resources represent an integral element of the cosmology, spirituality and, consequently, cultural identity of indigenous peoples.48 Accordingly, indigenous peoples have a unique understanding of how ‘human beings should live on the earth’,49 and respect for their lands, territories and resources becomes key for their continued survival and vitality. Common histories of oppression and marginalisation have also contributed to the process of identity-construction.50 D. Sanders, ‘The Formation of the WCIP’ 1977, at www.iwgia.org/iwgia_files_publications_ files/0188_29orldCouncil.pdf (accessed 20 September 2015) p. 10. 45 See, for example, Indigenous Peoples and their Relationship to Land, Final Working Paper prepared by the Special Rapporteur, Mrs Erica-Irene A.  Daes, UN Doc. E/CN.4/ Sub.2/2001/21 (11 June 2001). 46 As one indigenous representative put it, ‘the issue for indigenous peoples is the land; indigenous peoples are one with the land’. W. Means, ‘International Indian Treaty Council’ in Ewen (ed.), Voice of Indigenous Peoples, supra note 28, pp. 57–63, at p. 60. 47 ‘Indigenous Peoples and their Relationship to Land’, supra note 45, para. 121. 48 Yakye Axa Indigenous Community v. Paraguay, Inter-American Court of Human Rights, Series C 125 (2005) para. 135; Sawhoyamaxa Indigenous Community v. Paraguay, Inter-American Court of Human Rights, Series C 146 (2006) para. 118; and Saramaka People v. Suriname, Inter-American Court of Human Rights, Series C 172 (2007) para. 120. 49 J. Mander, ‘Introduction: Globalization and the Assault on Indigenous Resources’ in J. Mander and V. Tauli-Corpus (eds), Paradigm Wars:  Indigenous Peoples’ Resistance to Globalization (Sierra Club Books 2006) pp. 3–10, at p. 3. 50 As one indigenous leader put it, ‘gradually … we became aware that, despite cultural differences, we could see that we had the same problems as indigenous peoples in other parts of 44

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104  The political power of the indigenous movement In particular, Niezen has emphasised the importance of shared experiences among indigenous communities in facing the negative consequences of economic modernisation.51 It follows that anti-globalisation sentiments, most typically framed in environmental terms, have come to represent a major source of cohesion for the movement.52 As a result, being indigenous has become synonymous with ‘a unified way of life defending itself against the destructive force of modernity’,53 notably an idea that lies behind the characterisation of the indigenous movement as a form of political resistance to modern forces of globalisation.54 In sum, shared experiences of injustices, cultural values such as respect for nature and spiritual attachment to ancestral lands, and the identification of common objectives such as self-determination and land rights lie at the core of the ‘constructed’ indigenous identity. As noted in the previous section, the process of expansion beyond its original boundaries has tested the movement’s capacity to preserve a common identity. It goes without saying that the more accentuated historical, political and socio-economic differences get, the more difficult it becomes to conceptualise the elements and values underpinning a shared identity. For example, an important internal debate has taken root over the suitability of the very concept of ‘indigenous people’ in the African continent.55 While the African Commission the world’. Reported in Dahl, The Indigenous Space and Marginalized Peoples in the United Nations, supra note 18, pp. 91 and 92. 51 Niezen, The Origins of Indigenism, supra note 20, p. 10. 52 Consider, for example, the following passage from the outcome document of an international expert group meeting on the theme of indigenous development organised by the UN Permanent Forum on Indigenous Issues: ‘globalization … is viewed as an aggressive attempt to shape national economies to mimic the economic system of the industrialized countries and which is grossly unjust and has promoted further inequality and environmental devastation within a short period of time’. Indigenous Peoples:  Development with Culture and Identity: Articles 3 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples, Report of the International Expert Group Meeting, UN Doc. E/C.19/2010/14 (5 February 2010) para. 11. 53 Niezen, The Origins of Indigenism, supra note 20, p. 2. 54 For example, it has been described as a form of resistance to ‘global processes of dispossession’, to ‘modernization and globalization’, or, more generally, as ‘an emerging form of political resistance’. See, respectively, J. Kenrick and J. Lewis, ‘Indigenous Peoples’ Rights and the Use of the Term “Indigenous”’ (2004) 20 Anthropology Today pp. 4–9, at p. 9; Kingsbury, ‘ “Indigenous Peoples” in International Law’, supra note 18, p. 421; and Niezen, The Origins of Indigenism, supra note 20, p. 16. See also Mander and Tauli-Corpus (eds), Paradigm Wars, supra note 49. Going one step further, Maiguashca has argued that the indigenous movement not only constructed and developed the concept of indigenous identity but also promoted a counter-hegemonic project based on an indigenous worldview which contrasts significantly with that of the dominant social forces of today’s world order. B. Maiguashca, ‘The Role of Ideas in a Changing World Order: The International Indigenous Movement 1975–1990’, CERLAC Occasional Paper (1994), at www. yorku.ca/cerlac/documents/Maiguaschca.pdf (accessed 20 September 2015). 55 F.  Ndahinda, ‘The Future of Indigenous Rights in Africa:  Debating Inclusiveness and Empowerment of Collective Identities’ in Dunbar-Ortiz, Sambo Dorough, Alfredsson, Swepston and Wille (eds), International Law: Emergence and Application, supra note 21, pp. 370–391, at p. 372. For a broader discussion, see F. Ndahinda, Indigenousness in Africa: A Contested Legal Framework for Empowerment of ‘Marginalized’ Communities (TMC Asser Press 2011).

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The political power of the indigenous movement 105 on Human and Peoples’ Rights has welcomed the notion of ‘indigenousness’ to address the ‘structural relationships of inequality’ that are embedded in many African States,56 authors such as Ndahinda have warned that claims for special legal protection on the grounds of autochthony raise fundamental issues in a region where almost 2,000 different ethno-cultural groups live, especially when many of the latter seek recognition of their own cultural, religious or land-related rights. This uncertain situation, coupled with the fact that indigenous peoples are treated more generously than other groups under international law, have encouraged various African groups such as hunter-gatherer, pastoralist and farming groups to seek recognition as indigenous in a quest for collective empowerment.57 This dynamic poses a number of challenges not only to the notion of indigenous identity that has been discussed above, but also, according to some, to the long-term sustainability of a sui generis regime of indigenous rights.58 In spite of these inevitable difficulties and complications, indigenous peoples have been able to construe, nurture and project onto the international scene a credible idea of ‘common identity’ that has significantly enhanced their power at the international level. In particular, the next section will discuss the important relationship between this identity and the degree of political legitimacy enjoyed by indigenous representatives operating at the global level. 4.1  The political legitimacy of the indigenous movement The participation of civil society in international law-making represents a contemporary feature of the international legal system.59 Civil society ‘Definitely all Africans are indigenous, however, if the concept of indigenous is exclusively linked with a colonial situation, it leaves us without a suitable concept for analysing internal structural relationships of inequality that have persisted after liberation from colonial dominance … domination and colonisation has not exclusively been practiced by white settlers and colonialists … dominant groups have also after independence suppressed marginalized groups, and it is this sort of present-day internal suppression within African states that the contemporary African indigenous movement seeks to address.’ Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, adopted by the African Commission on Human and Peoples’ Rights by Resolution 65 (XXXIV) 03, 20 November 2003, 92. 57 Ndahinda, ‘The Future of Indigenous Rights in Africa’, supra note 55, p. 391. See also G. Lynch, ‘Becoming Indigenous in the Pursuit of Justice: The African Commission on Human and Peoples’ Rights and the Endorois’ (2012) 111 African Affairs pp. 24–45. 58 W. Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford University Press 2007) pp. 288–289; Lynch, ‘Becoming Indigenous in the Pursuit of Justice’, supra note 57. 59 According to Fernando Henrique Cardoso, Chair of the Panel of Eminent Persons on United Nations–Civil Society Relations, ‘the rise of civil society is … one of the landmark events of our times. Global governance is no longer the sole domain of Governments. The growing participation and influence of non-State actors is enhancing democracy and reshaping multilateralism.’ Transmittal letter dated 7 June 2004 from the Chair of the Panel of Eminent Persons on United Nations–Civil Society Relations addressed to the Secretary-General, included in ‘We the Peoples: Civil Society, the United Nations and Global Governance’, supra note 9, p. 3. 56

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106  The political power of the indigenous movement representatives advance claims and ideas that are often in contrast with those of States, bringing a different perspective to bear in the discussions in which they are allowed to engage. In this sense, their involvement in the creation of international law could have important consequences for the way in which the latter develops and functions. That said, it is one thing to try to influence the development of international law and quite another thing to have the actual power to do so. In other words, the indisputable increased visibility of civil society on the international scene has not necessarily translated into effective power.60 The successes of civil society will depend on various factors, including the kind of opportunities that will effectively become available to specific actors, and the capacity of the latter to exploit them in an effective manner. Against this complex background, the question of political legitimacy becomes particularly relevant.61 As the participation of civil society actors in international law processes has grown, questions such as ‘who they represent’ and ‘to what extent they speak on behalf of those they (claim to) represent’ have become increasingly pressing. These questions are important because higher levels of political legitimacy tend to enhance actors’ political power vis-à-vis States and international institutions, with potentially important implications for the likelihood of success of their lobbying efforts. In order to better appreciate this point, it is useful to look at how the question of legitimacy may affect the most important and successful civil society actor, that is, NGOs.62 It is normally said that, by participating in international law-making processes, NGOs contribute to redress the democratic deficit of the international legal system.63 This is so because they represent the public or, at least, a large

For example, talking about NGOs, Barsh and Khattak observed that ‘the increased visibility of NGOs at UN policy meetings, and glowing praise by governments, created the appearance of growing NGO power and efficacy … [however] the extent to which the participation of NGOs in global policy-making resulted in positive changes on the ground has yet to be tested rigorously’. R. Barsh and N. Khattak, ‘Non-governmental Organisations in Global Governance’ in G. Alfredsson and M. Stavropoulou (eds), Justice Pending: Indigenous Peoples and Other Good Causes: Essays in Honour of Erica-Irene A. Daes (Brill 2002) pp. 15–32, at p. 30. 61 While several sources of political legitimacy can be identified, the discussion in this chapter will focus on the question of legitimacy as ‘representation’. For a general discussion, see V. Collingwood and L. Logister, ‘Perceptions of the Legitimacy of International NGOs’ in A. Vedder (ed.), NGO Involvement in International Governance and Policy: Sources of Legitimacy (Martinus Nijhoff Publishers 2007) pp. 21–58. 62 On the role of NGOs in international law generally, see, among others, J. Aston, ‘The United Nations Committee on Non-governmental Organizations:  Guarding the Entrance to a Politically Divided House’ (2001) 12 European Journal of International Law pp. 943–962; J. Meritus, ‘Considering Non-State Actors in the New Millennium:  Toward Expanded Participation in Norm Generation and Norm Application’ (2000) 32 International Law and Politics pp. 537–566; D. Otto, ‘Nongovernmental Organizations in the United Nations System: The Emerging Role of International Civil Society’ (1996) 18 Human Rights Quarterly pp. 107–141; A. Boyle and C. Chinkin, The Making of International Law (Oxford University Press 2007), especially Chapter 2, ‘Participants in International Law-Making’, pp. 41–97. 63 This, it should be noted, is part of a different debate, namely the contribution of NGOs to enhancing the legitimacy of the international legal order. 60

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The political power of the indigenous movement 107 sector thereof.64 In this sense, the participation of NGOs becomes a guarantee that people’s views will be taken into account. There is, however, a problem with this otherwise logical inference, namely that the question of ‘who do NGOs ultimately represent?’ is acknowledged to be a difficult one.65 It is in fact telling that even representatives of NGOs accept that some NGOs tend to reflect their own interests while pretending to speak in the people’s name.66 In this respect, Anderson has observed that, besides a few exceptions, international NGOs ‘are not very often connected, in any direct way, to masses of people’67 and are therefore better described as ‘fundamentally elite organizations’.68 Focusing on large development NGOs, Nash has reiterated Anderson’s point highlighting that the latter’s aims and tactics are normally set by development experts rather than those who are directly affected by issues of poverty and injustice.69 Further important questions concern the nature of the relationship between NGOs and their members. Even those international NGOs with large base membership such as Amnesty International cannot fully eschew the legitimacy trap. This is so because their members mostly come from wealthy countries and tend to be representatives of a well-educated and at least middle class.70 In other words, even when a link with the public exists, this is more likely to be with a rather narrow segment thereof. Furthermore, the members of some international NGOs tend to act like supporters passively donating money rather than associates participating in the organisation’s decision-making.71 This, in turn, will have negative repercussions on the correlation between what NGOs do and what their members actually think.72 S. Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100 American Journal of International Law pp. 348–372, at p. 363. 65 See, for example, Collingwood and Logister, ‘Perceptions of the Legitimacy of International NGOs’, supra note 61, pp. 28–30 and 44; T. Weiss and L. Gordenker, ‘NGO Participation in the International Policy Process’ in T. Weiss and L. Gordenker (eds), NGOs, the UN, and Global Governance (Lynne Rienner Publishers 1996) p.  219; S. Ripinsky and P. Van den Bossche, NGO Involvement in International Organizations: a Legal Analysis (British Institute of International and Comparative Law 2007) pp. 11–14. 66 Collingwood and Logister, Perceptions of the Legitimacy of International NGOs, supra note 61, p. 29. 67 K. Anderson, ‘The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society’ (2000) 11 European Journal of International Law pp. 91–120, at p. 117. 68 Ibid., p. 117. 69 K. Nash, ‘Human Rights, Movements and Law: On Not Researching Legitimacy’ (2012) 46 Sociology pp. 797–812, at p. 800. 70 Anderson, ‘The Ottawa Convention Banning Landmines’, supra note 67, p. 117. 71 M. Kaldor, ‘Civil Society and Accountability’ (2003) 4 Journal of Human Development pp. 5–27, at p. 17. 72 Collingwood and Logister, Perceptions of the Legitimacy of International NGOs, supra note 61, p.  44. In addition to the above concerns, one might also allude to the reservations often expressed in relation to the geographical origins of NGOs. For example, the UN Secretary-General’s report, ‘Strengthening of the United Nations:  An Agenda for Further Change’, highlighted, in 2002, that there is a ‘great imbalance of non-governmental organizations from the industrialized and those from developing countries’. Strengthening of the United Nations:  An Agenda for Further Change’, Report of the Secretary-General, UN Doc. A/57/387 (9 September 2002)  para. 137(d). Such a disparity cannot but give rise 64

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108  The political power of the indigenous movement At this point, it is important to acknowledge the great diversity in the NGO world. Against this mixed background, it goes without saying that some NGOs will be less affected than others by the legitimacy question highlighted above. At the same time, some NGOs will be more successful than others in joining forces with more grassroots organisations, including, for example, social movements.73 Nevertheless, the fact remains that in recent years, NGOs have faced growing criticism for their difficulties in truly representing ‘others’ on the international scene, contributing to calls for the de-NGOisation of civil society discourse.74 These difficulties affect the capacity of NGOs to engage and negotiate effectively with States and international institutions inasmuch as the latter perceive a lack of connection between their representatives and the people they seek to represent. The words of Hasmy Agam, former Permanent Representative of Malaysia to the UN, may not exactly reflect the views of the majority of States; however, they are indicative of the general scepticism towards NGOs that exists in certain governmental circles: At times, governments may question NGOs’ motives, purposes, sources of funding, mandates, and legitimacy. In particular, NGOs are critiqued when they have a membership composed of just a few ‘busy bodies’. Governments may ask:  ‘Who are these people?’; ‘Who elected them?’; and ‘What are their personal agendas? … [Furthermore] the governments may question the accountability, even legitimacy, of independent NGOs and deride their narrow, self-serving interests as driven by the personal egos and ambitions of a few frustrated individuals.75 Can similar questions and concerns be raised in relation to the indigenous movement? As the following discussion will suggest, the answer to this to accusations of partiality. In fact, as highlighted in the Report of the Panel of Eminent Persons on United Nations–Civil Society Relations, NGOs are often criticised for ‘pushing a “Northern agenda” through the back door’. ‘We the Peoples:  Civil Society, the United Nations and Global Governance’, supra note 9, p. 7. 73 In this respect, it should be noted that the global indigenous movement also comprises non-indigenous NGOs with a cursory interest in indigenous issues and, more importantly, non-indigenous NGOs focusing exclusively on indigenous rights. The latter, which include groups such as Cultural Survival, the International Work Group for Indigenous Affairs, and the Indigenous Peoples’ Centre for Documentation, Research and Information, are important because they provide crucial support in terms of advocacy, services and resources, and awareness raising. See Morgan, Transforming Law and Institution, supra note 5, pp. 79–80. That said, non-indigenous organisations remain essentially peripheral to the movement, which consists principally of indigenous communities, indigenous organisations and more professional indigenous NGOs, as will be further discussed below. 74 B. Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press 2003) p. 258. 75 H. Agam, ‘Working with NGOs:  A  Developing World Perspective’ (2002) 13 Colorado Journal of International Environmental Law and Policy pp. 39–44.

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The political power of the indigenous movement 109 question should be negative. In a fundamental sense, indigenous peoples engage with States and international organisations without the medium of third agents, that is to say, they participate in the international legal system as representatives of themselves.76 Thus, there is no artificial separation between the indigenous representatives who sit in international meetings and fora, and the indigenous communities who live around the world. Yet, to what extent are the former truly representative of the latter? The discussion on the concept of collective identity developed in the previous section is key to answering this question, as it is precisely the existence of an indigenous collective identity that guarantees a continuum between the indigenous representatives with whom States talk and the indigenous people whose grievances the latter are trying to redress. This link is self-evident in the case of indigenous communities’ leaders, that is, members of the indigenous movement who essentially act as messengers or more formally appointed spokesmen of specific communities.77 The link also remains relatively strong in the case of those indigenous delegates of more formal indigenous organisations who keep a strong tie with the regional or national communities they represent.78 By contrast, some doubts may exist with regard to those indigenous representatives who are appointed by more professional indigenous NGOs. These are indigenous experts mainly operating at the international level who have a higher level of legal and technical expertise. As they have the necessary skills and knowledge to engage effectively with States and international institutions, they inevitably play an influential role in a movement that, borrowing Niezen’s words, strives ‘to be involved at the highest level possible in international politics’.79 In a sense, these leaders form an elite within the indigenous movement, and yet their special status does not ultimately undermine their

For Koivurova and Heinamaki, at the core of the question lies the fact that indigenous peoples’ delegates ‘represent peoples [and] not interest-based constituencies such as the members of environmental organizations’. T. Koivurova and L. Heinamaki, ‘The Participation of Indigenous Peoples in International Norm-Making in the Arctic’ (2006) 42 Polar Record pp. 101–109, at p. 102. 77 For a discussion of the types of members of the global indigenous movement, see Dahl, The Indigenous Space and Marginalized Peoples in the United Nations, supra note 18, p. 140. 78 Ibid., p. 137. 79 R. Niezen, ‘Recognizing Indigenism:  Canadian Unity and the International Movement of Indigenous Peoples’ (2000) 40 Comparative Studies in Society and History pp. 119–148, at p. 121. An important point should be made with regard to the nature of the indigenous movement’s engagement with States and institutions. Social movements typically lack or have only limited access to decision-makers. As a result, they tend to act outside the institutions they aim to challenge, for example, by means of collective forms of protest. By contrast, the range of actions and strategies adopted by the indigenous movement at the global level include engaging in high-level discussions and negotiations with States’ representatives, documenting and submitting information regarding human rights violations, and making formal statements before UN and other international bodies in an attempt to influence their actions (see R. Morgan, ‘On Political Institutions and Social Movement Dynamics: The Case of the United Nations and the Global Indigenous Movement’ (2007) 28 International Political 76

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110  The political power of the indigenous movement capacity to legitimately represent indigenous peoples internationally. The concept of ‘rooted cosmopolitan’ may help to better understand this point.80 According to Tarrow, rooted cosmopolitans are individuals who ‘move cognitively and physically outside their spatial origins [but] continue to be linked to place, to the social networks that inhabit that space, and to the resources, experiences and opportunities that place provides them with’.81 The idea of rooted cosmopolitanism would therefore suggest that, while some indigenous leaders may have become part of a ‘complex international society’,82 they nevertheless maintain a connection with their own roots, with important implications for their representative capacities. Obviously the degree and nature of this connection can be contested. For example, one may question whether these indigenous leaders have lost, either partially or fully, their traditional cultures or whether, by contrast, they have been able to preserve or reconcile them with the realities of the global settings within which they primarily operate.83 And yet the basic questions ‘who does the indigenous movement represent?’ and ‘to what extent do indigenous representatives speak on behalf of indigenous people?’ can be answered in a relatively straightforward way. Whether one sees the more international among indigenous leaders as Science Review pp. 273–292, at p.  281). All these activities are institutional in the sense that they take place within a specific institutional space and in accordance with the relevant procedural framework. According to the literature on social movements, this process of institutionalisation could have proved detrimental to the indigenous movement. This is so because when actors seeking radical changes approach and engage with formal institutions, a contextual process of co-optation and de-radicalisation may take place. When this happens, the capacity of an actor to challenge the dominant norms of existing institutional structures weakens as its initial radical claims are modified in order to make them more acceptable to the relevant authorities. In the case of indigenous peoples, however, the process of institutionalisation undergone by the movement has not produced any such negative effects, as indigenous representatives did not give up or alter their fundamental claims in order to become more acceptable to States and/or preserve their place in UN settings. Instead, they continued to challenge existing rules, including those concerning their participation in international meetings, to advance far-reaching claims, especially in relation to self-determination, land rights and participatory rights, and generally to demand more voice and power. The diplomatic process of discussions and disagreements that took place between States’ and indigenous representatives during the drafting of the Declaration should therefore not be confused with a process of de-radicalisation. In other words, if the final version of the Declaration does not fully reflect the initial requests of indigenous peoples, it is not because the latter shifted their political agenda to fit the new institutional setting, but, rather, because indigenous representatives were not the only norm-creators involved in the drafting of the instrument. 80 Dahl, The Indigenous Space and Marginalized Peoples in the United Nations, supra note 18, p.  145. For a similar discussion on the dynamic concept of ‘authenticity’, see J. Lucero, ‘Representing “Real Indians”:  The Challenges of Indigenous Authenticity and Strategic Constructivism in Ecuador and Bolivia’ (2006) 41 Latin American Research Review pp. 31–56, at pp. 34 and 35. 81 S. Tarrow, The New Transnational Activism (Cambridge University Press 2005) p. 42. 82 Ibid. 83 Dahl, The Indigenous Space and Marginalized Peoples in the United Nations, supra note 18, p. 147.

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The political power of the indigenous movement 111 representatives of ‘imagined’ or more tangible indigenous communities, the point remains that States and international institutions treat them as genuine (indigenous) representatives of the world’s indigenous people. In particular, they acknowledge that they are indigenous persons mandated, either formally or informally, by indigenous groups and communities to project local struggles into international ones. An important consequence of this is that when States’ delegates meet and discuss with indigenous representatives, they realise that they are actually dealing with the claims of hundreds of millions of people who stand behind those individuals. The resulting political legitimacy enjoyed by the indigenous movement enhances its power vis-à-vis formal institutions,84 with important consequences for its capacity to make the indigenous voice heard and count.

5.  Speaking with one voice The potential advantages deriving from the creation of a global indigenous movement built around a shared indigenous identity could have been seriously compromised had indigenous peoples failed to exploit them in a skilful way. As noted earlier, the most expert among indigenous representatives have developed a deep understanding of the rules, principles and dynamics of international law. For example, UN officials who witnessed first-hand the performances of these representatives during the drafting of the UNDRIP

84

It is worth highlighting that the participation of indigenous peoples in the drafting process of the Declaration is just the tip of an iceberg, as they have been able to secure regular participation in numerous international fora and processes. For this reason, they have been described as ‘one of the most active lobbying interests in international organizations’. L. Swepston, ‘Indigenous Peoples in International Law and Organizations’ in J. Castellino and N. Walsh (eds), International Law and Indigenous Peoples (Kluwer Law International 2004) pp. 53–66, at p.  53. For example, indigenous representatives actively participate in meetings held under the Convention on Biological Diversity and, in particular, the ad hoc open-ended Working Group on Article 8(j) of the instrument, which refers to traditional knowledge, innovations and practices of indigenous and local communities with regard to conservation and the sustainable use of biological diversity. Their role is also recognised by the World Intellectual Property Organization, precisely in the context of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. Furthermore, indigenous peoples participate in meetings of the UN Commission on Sustainable Development and have recently participated in the Durban Review Conference and its Preparatory Process (see www.un.org/durbanreview2009/ index.shtml (accessed 20 September 2015)). Indigenous peoples are also permanent participants, together with Arctic States, in the Arctic Council, which is a high-level intergovernmental forum dealing essentially with the issues of sustainable development and environmental protection in the Arctic region (see http://arctic-council.org/article/ about (accessed 20 September 2015)). They have also been recognised as one of the major stakeholders in the advancement of sustainable development under Agenda 21 and participate in the meetings of the Conference of Parties to the UN Framework Convention on Climate Change (see www.indigenoussummit.com/servlet/content/home.html (accessed 20 September 2015)).

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112  The political power of the indigenous movement have commented on their ‘superior knowledge … about international standards and the workings of the UN’.85 Undoubtedly, the capacity of the most experienced members of the indigenous movement to fully understand and skilfully exploit both the concepts and ambiguities of international law has been instrumental to the international successes of indigenous peoples. Yet, these members needed to speak on behalf of a united movement in order to be credible to their counterparts. Indigenous peoples soon realised that this represented a challenge for a multifaceted movement such as the global indigenous movement and accordingly developed a methodical approach to consensus-building.86 As already pointed out, this is not to suggest that all indigenous representatives are equally influential within the movement, but, rather, that systematic efforts have been made to promote cohesion and a certain communality of views. The tradition of holding sessions of the global indigenous caucus before meetings with States has been central to this process. Bringing together the different components of the movement under the guidance of influential leaders, the caucus has traditionally facilitated a process of convergence among different indigenous representatives by encouraging them to learn about their respective differences, ‘to find common ground and devise an argumentative arsenal with which to confront [the others]’.87 The more recent creation of regional and thematic caucuses has provided further opportunities to discuss and shape common positions, reinforcing the movement’s commitment to consensus-building.88 As one would expect, the unity of the movement has been occasionally tested. For example, it is well known that during the negotiations on the UNDRIP the movement remained split for several years between the supporters of the so-called ‘no change position’, demanding the adoption of the UNDRIP without any further amendment, and those who were prepared to further negotiate the text with a view to securing its adoption. Most of the time, however, the movement has been able to create consensus and settle differences. This is confirmed by the analyses of both those who had direct institutional contact with indigenous peoples during the negotiations on the UNDRIP and those who studied the internal dynamics of the movement. For example, Rodolfo Stavenhagen, who was the UN Special Rapporteur on the Rights of Indigenous Peoples between 2001 and 2008, once commented that Gudmundur Alfredsson, former secretary of the UN Working Group on Indigenous Populations. G.  Alfredsson, ‘Working Group on Indigenous Populations 1985–91’ in Dunbar-Ortiz, Sambo Dorough, Alfredsson, Swepston and Wille (eds), supra note 21, pp. 200–207, at p. 201. 86 As one indigenous leader put it, ‘[through our engagement with States and the UN] we learned about the significance of creating consensus’. Hjalmar Dahl, ICC, in Dahl, The Indigenous Space and Marginalized Peoples in the United Nations, supra note 18, pp.  91 and 92. 87 Muehlebach, ‘ “Making Place” at the United Nations’, supra note 27, p. 421. 88 The two thematic caucuses are the Women’s Caucus and the Youth Caucus, while the seven regional caucuses were mentioned in section 3 above. 85

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The political power of the indigenous movement 113 ‘on the fundamental issues of their human rights, their objectives and their aspirations [indigenous peoples were] usually in remarkable agreement’.89 Some scholars have similarly highlighted that ‘despite their differences, indigenous peoples have adopted a strikingly similar position with regards to the nature of the oppression to which they are subjected and the means for their liberation’90, while others have referred to the consistency of the cultural and political arguments advanced by indigenous representatives as a tangible manifestation of their communality of views and intents.91 All of the above can be taken to suggest that, by speaking with one voice on the most fundamental issues affecting their lives and aspirations, indigenous peoples have increased both their political credibility and power of persuasion, positively affecting the chances of success of their collective diplomatic efforts.

6.  Indigenous participation: a model for other groups seeking the recognition of their human rights in international law? The importance of an actor’s identity and action in determining the outcome of a particular struggle for justice in international law can be further appreciated by looking at the way in which homeland minorities, the Roma and peasants, that is, the three groups that were discussed earlier in Chapter 4, have thus far engaged with States and international institutions. Contrary to indigenous peoples, for example, homeland minorities have struggled to unite politically in order to lobby States at the international level. This, as suggested by Alfredsson, may be partially due to a general lack of faith in international law and settings.92 However, a more profound reason seems to lie in the incapacity of these groups to construe a shared identity and develop common strategies.93 A minority movement could potentially speak on behalf of the 10 or 20 per cent of the world’s population.94 This would put significant pressure on States and international institutions to take minorities’ demands

Indigenous peoples ‘speak with many voices, but on the fundamental issues of their human rights, their objectives and their aspirations they are usually in remarkable agreement’. Human Rights and Indigenous Issues, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Mr Rodolfo Stavenhagen, UN Doc. E/CN.4/2002/97 (4 February 2002) para. 85. 90 Maiguashca, ‘The Role of Ideas in a Changing World Order’, supra note 54, p. 2. 91 Muehlebach, ‘ “Making Place” at the United Nations’, supra note 27, p. 421. 92 G. Alfredsson, ‘Minority Rights: Norms and Institutions’ in K. Boyle (ed.), New Institutions for Human Rights Protection (Oxford University Press 2009) pp. 175–206, at p. 176. 93 See, for example, C.  Lennox, ‘Transnational Mobilisation of Minority Groups:  Using International Human Rights to Achieve National Multiculturalism’, at https://www. dur.ac.uk/resources/chpt/Durham%20Conference%202007%20Lennox%20FINAL.doc (accessed 20 September 2015). 94 United Nations Guide for Minorities, at www.ohchr.org/EN/Issues/Minorities/Pages/ MinoritiesGuide.aspx (accessed 20 September 2015). 89

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114  The political power of the indigenous movement very seriously. However, as discussed in this chapter, numbers alone do not determine the power of a movement, which, instead, can only succeed in the presence of a shared collective identity and common goals. Due to its multifaceted nature, the world’s minorities have thus far been unable to accomplish these two essential requirements,95 a circumstance that has contributed to weakening the potential of their already limited diplomatic efforts. Similar considerations can be made in relation to Roma international activism.96 According to several authors, the fragmented identity of the Roma,97 coupled with a lack of common interests, has made it particularly difficult for this group to unite politically.98 When they have succeeded in doing so,99 further complications have arisen. For example, it has been noted that some Roma organisations operating at the international level have been competing rather than cooperating with each other.100 More importantly, there have been suggestions of a significant disconnection between these organisations It is particularly telling that even at the regional level it may be difficult to discern the bases of a common minority identity, as exemplified by the case of European regionalist parties. On the basis of a different ethnicity, these parties advocate various degrees of autonomy or even independence. As explained by Gómez-Reino, however, these somehow similar claims, ‘are tied to very different ideologies, issues and programs’. M. Gómez-Reino, European Integration and an Alternative Party Family: Regionalist Parties and the European Question’ in A. Gould and A. Messina (eds), Europe’s Contending Identities:  Supranationalism, Ethnoregionalism, Religion and New Nationalism (Cambridge University Press 2014) pp. 118–140, at p. 120. As a result, the very portrait of regionalist parties as a single-party family has been often contested. See, for example, P. Mair and C. Mudde, ‘The Party Family and its Study’ (1998) 1 Annual Review of Political Science pp. 211–229. For a discussion of the various typologies of such parties, see R. Dandoy, ‘Ethno-regionalist Parties in Europe: A Typology’ (2010) 2 Perspectives on Federalism pp. 194–220. 96 For a discussion of Roma activism in the international scene, see I. Klimova-Alexander, The Romani Voice in World Politics: The United Nations and Non-State Actors (Ashgate, 2005); A. McGarry, Who Speaks for Roma?  Political Representation of a Transnational Minority Community (Continuum International Publishing Group, 2010); and P. Vermeersch, The Romani Movement:  Minority Politics and Ethnic Mobilization in Contemporary Central Europe (Berghahn Books 2007). 97 See, for example, T. Ahmed, ‘The Many Vulnerabilities of the Roma and the European Legal Framework’ in F. Ippolito and S. Sanchez (eds), Protecting Vulnerable Groups: The European Human Rights Framework (Hart 2015) pp. 141–158, at pp. 142–143; and A. Kocze and M. Rovid, ‘Pro-Roma Global City Society: Acting for, with or Instead of Roma’ in M. Kaldor (ed.), Global Civil Society 2012: Ten Years of Critical Reflection (Palgrave Macmillan 2012) pp. 110–123, at p. 119. 98 See, for example, M. Kovats, ‘The Politics of Roma Identity: Between Nationalism and Destitution’, Open Democracy (29 July 2003), at www.opendemocracy.net/people-migrationeurope/ article_1399.jsp (accessed 20 September 2015); Kocze and Rovid, ‘Pro-Roma Global City Society’, supra note 96, p.  119; and A. Lukoševicˇius and M. Lukoševicˇiuˉte·, ‘Roma Political Representation Struggles: Education as Example of Failed Official Political Discourse’ (2012) 1 Changing Education in a Changing Society pp. 211–217, at p. 213. 99 See, for example, the discussion of the various transnational organisations that have emerged in recent years with the aim of representing the Roma at the international level, in McGarry, Who Speaks for Roma?, supra note 96, pp. 140–148. 100 Klimova-Alexander, The Romani Voice in World Politics, supra note 96, p. 86. 95

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The political power of the indigenous movement 115 and the general Roma community, with important implications for the political legitimacy enjoyed by Roma representatives.101 These partially unsuccessful attempts to mobilise globally, however, may represent a starting point for building a more effective international movement, notably one underpinned by a stronger collective identity and capable of both defining common objectives and speaking with one voice.102 Peasants have mobilised more effectively than homeland minorities and the Roma have done, and, interestingly, the manner in which they have achieved this goal seems to confirm some of the points made earlier in this chapter in regard to the factors that may enhance an actor’s political power on the international scene. While a number of international organisations are actively committed to the promotion and protection of peasants’ rights, La Via Campesina has become the most important player of the global peasant movement.103 La Via Campesina comprises more than 160 local and national organisations in more than 70 countries across Africa, Asia, Europe and the Americas, representing about 200 million farmers.104 According to its mission statement, it strives to defend small-scale sustainable agriculture as a way of promoting social justice and human dignity.105 It has already left an imprint on the human rights struggle of peasants in international law. As discussed in Chapter 4, its 2008 Declaration of the Rights of Peasants – Women and Men was annexed to the 2010 preliminary study of the advisory committee of the UN Human Rights Council on discrimination in the context of the right to food, and later served as a basis for the draft peasant declaration proposed by the same committee to the Human Rights Council in 2012. It is also telling

See, in particular, McGarry, Who Speaks for Roma?, supra note 96, p.  160. See also A. McGarry, ‘Ethnic Group Identity and the Roma Social Movement: Transnational Organizing Structures of Representation’ (2008) 36 Nationalities Papers:  The Journal of Nationalism and Ethnicity pp. 449–470, at p. 464. 102 Indeed, a stronger Roma voice at the international level would be crucial to make full use of the potential of the UN human rights system. This is particularly true if one considers that Roma rights have gained momentum at the UN following the appointment, in 2011, of Rita Izsak, of Romani origin and with relevant work experience in the field of Roma rights, as Special Rapporteur on Minority Issues. In this context, the 2014 decision of the Human Rights Council to invite her to prepare a global study on the human rights situation of the Roma could be a decisive moment. The results and recommendations of this study, which was released in 2015 and discussed in some detail in Chapter 4, could potentially set the basis for future normative developments in the area. 103 A. Mann, Global Activism in Food Politics:  Power Shift (Palgrave Macmillan 2014) p.  5; C. Golay, ‘Legal Reflections on the Rights of Peasants and Other People Working in Rural Areas’, paper prepared for the first session of the Working Group on the Rights of Peasants and Other People Working in Rural Areas, 15–19 July 2013, p.  5. For a broader discussion, see A. Desmarais, Globalization and the Power of Peasants: La Via Campesina (Pluto Press 2007). 104 At http://viacampesina.org/en/index.php/organisation-mainmenu-44/what-is-la-viacampesina-mainmenu-45 (accessed 20 September 2015). 105 Ibid. 101

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116  The political power of the indigenous movement that in 2009 the UN Human Rights Council and General Assembly both invited La Via Campesina to contribute to an important debate on the causes and remedies to the 2007/2008 food crisis.106 Currently, La Via Campesina delegates are among the civil society representatives who, together with States’ and international organisations’ delegates, attend the sessions of the working group on the peasant declaration. As with indigenous peoples, a crucial factor behind these (early) successes has been the capacity of the peasant movement to construe and coalesce around a shared identity, which, in turn, has allowed peasants to effectively self-represent themselves in their international lobbying efforts.107 The celebration of a common rural culture that is associated with, inter alia, the production, distribution, preparation and consumption of food,108 and is at odds with the current corporate model of agriculture is an important component of this peasant identity. In addition, peasants are united by shared experiences of economic vulnerability, structural lack of power and susceptibility to the negative effects of environmental degradation.109 This shared identity has enhanced the political credibility of the movement’s representatives and has facilitated the identification of common goals and strategies among the group’s members.110 This can As reported in the Preliminary Study of the Human Rights Council Advisory Committee on Discrimination in the Context of the Right to Food, UN Doc. A/HRC/13/32 (22 February 2010) para. 53. The La Via Campesina statement at the UN General Assembly on the global food crisis and the right to food can be found at http://viacampesina.org/en/index.php/ main-issues-mainmenu-27/human-rights-mainmenu-40/673-via-campesina-statement-atthe-un-general-assembly-on-the-global-food-crisis-and-the-right-to-food (accessed 20 September 2015). On the 2007–2008 food crisis, see C. Golay, ‘The Food Crisis and Food Security: Towards a New World Food Order?’ (2010) 1 International Development Policy Series pp. 215–232; and ‘The Global Social Crisis:  Report on the World Social Situation 2011’, Department of Economic and Social Affairs of the United Nations Secretariat, Chapter 4, ‘The Global Food Crises’. 107 In the words of Desmarais, the peasant identity ‘reflects people who share a deep commitment to place, who are deeply attached to a particular piece of land, who are all part of a particular rural community, people whose mode of existence is under threat. This place-bound identity, that of “people of the land”, reflects the belief that they have the right to be on the land. They have the right and obligation to produce food. They have the right to be seen as fulfilling an important function in society at large. They have the right to live in viable communities and the obligation to build community. All of these factors form essential parts of their distinct identity as peasants’. A. Desmarais, Globalization and the Power of Peasants, supra note 103, p. 196. See also A. Desmarais, ‘The Power of Peasants: Reflections on the Meanings of La Via Campesina’ (2008) 24 Journal of Rural Studies pp. 138–149. 108 Desmarais, Globalization and the Power of Peasants, supra note 103, p. 197. 109 M.  Edelman, ‘What is a Peasant? What are Peasantries?’, Briefing Paper on Issues of Definition, prepared for the First Session of the Intergovernmental Working Group on a United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas, Geneva, 15–19 July 2013, p. 9. 110 As one representative noted at the second international conference of La Via Campesina in 1996, ‘we have enormous strengths. For the first time in the world, we, the people of the land, are collecting ourselves around some common purposes and committing ourselves to work in solidarity with each other to achieve these goals’. Quoted in Desmarais, Globalization and the Power of Peasants, supra note 103, p. 32. 106

The political power of the indigenous movement 117 have important implications for the human rights struggle of peasants, especially considering that, as discussed in Chapter  4, this group will have to overcome important obstacles in order to obtain the validation of their most far-reaching human rights claims.

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7.  Conclusions The fact that other groups have not been able to emulate the legal achievements of indigenous peoples despite advancing similar claims and sharing important features with them suggests that the adoption of the UNDRIP does not reflect a broader trend in international law aimed at supporting the demands for justice of disempowered and vulnerable groups. Accordingly, the third part of the book set out to examine the dynamics, factors and circumstances that contribute to explaining this unique development in international law. First, this chapter has discounted the view that the UNDRIP could be adopted simply because it did not pose a significant threat to the affected States. On the contrary, it is evident that the Declaration fundamentally affects States’ core political and economic interests, as the question of the exploitation of natural resources found on indigenous lands clearly demonstrates. The chapter has then proceeded to discuss one particular element that affected the negotiation dynamics of the UNDRIP, namely the exceptionally high level of political power enjoyed by indigenous representatives sitting at the negotiating table. While today it is not uncommon for civil society representatives to engage in international law-making, their capacity to actually influence the creation of international law is inevitably restricted by States’ overall control over the crucial stages of the process. In these circumstances, the way in which actors organise themselves and seek to persuade States to embrace their claims can have important effects on the final outcome of their struggles for justice. In particular, the discussions in this chapter have highlighted that the sources of the atypical political power enjoyed by indigenous representatives are to be found in the action and identity of the global indigenous movement. On the one hand, the global dimension of the movement has allowed indigenous representatives sitting in UN rooms to speak on behalf of hundreds of millions of indigenous people. This obviously has affected the force of their claims as well as the way in which the latter have been perceived by States’ representatives. On the other hand, the authority and cohesion of the movement has been strengthened by the existence of an indigenous collective identity that connects the indigenous representatives operating at the international level and the members of the world’s indigenous communities who stand behind them. It is precisely on the basis of this shared identity that the former can be regarded as legitimate representatives of the latter, with important consequences in terms of their international credibility. Cultural values such as respect for nature and spiritual attachment to ancestral lands, shared experiences of dispossession and marginalisation, and common objectives such as demands for

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118  The political power of the indigenous movement self-determination and land rights lie at the heart of the indigenous identity. These values and objectives have united the movement, allowing it to speak with one voice and pursue common and well-defined goals, most typically defined in international law terms. Commitment to the principle of consensus-building and good diplomatic skills further contributed to the positive functioning of the movement. Thanks to the above, indigenous peoples have been able to exploit the avenues and platforms offered by the current international legal system to effectively influence the overall process of emergence of indigenous rights, overcoming the typical obstacles faced by actors advancing ambitious human rights claims that directly affect States’ primary interests.

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6 Two distinguishing features of the human rights claims of indigenous peoples

1.  Introduction This chapter complements the analysis begun in Chapter  5 of the dynamics, factors and circumstances that have facilitated the adoption of a distinctive instrument such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration). Chapter 5 suggested that the political power and diplomatic skills of the global indigenous movement were instrumental in convincing States to accept the particularly challenging claims made by indigenous peoples. Following on from that discussion, this chapter will draw attention to two special features of indigenous peoples’ human rights claims that can be said to have further contributed to the positive recognition of indigenous rights in international law. The first part of the chapter will suggest that, being profoundly linked with human suffering, the claims of indigenous peoples had a particularly strong moral force and thus resonated more powerfully than others at the international level.1 In particular, it will highlight how the gravity and urgency of the situation of indigenous peoples, coupled with the historical injustices suffered by these groups, importantly influenced the way in which States approached the question of indigenous rights during the drafting of the UNDRIP. The second part of the chapter will focus on the environmental dimension of indigenous peoples’ human rights claims. This discussion will reveal how indigenous peoples’ cultures and lifestyles have been widely perceived as being inherently sustainable. The consequences of the ‘environmental appeal’ of indigenous rights should not be underestimated in light of

That the perceived moral force of a claim may affect the likelihood of its international legal validation has also been confirmed by International Relations scholars who have studied the process of normative change in the international system. In particular, Keck and Sikkink have suggested that claims involving physical harm to vulnerable people, especially when it is also possible to identify who bears responsibility or guilt for that harm, and claims that reflect instances of manifest (legal) inequality such as cases of grave discrimination on the basis of sex, race, and culture tend to have a better prospect of success. See M. Keck and K. Sikkink, ‘Transnational Advocacy Networks in International and Regional Politics’ (1999) 51 International Social Science Journal pp. 89–101, at pp. 98 and 99.

1

120  The human rights claims of indigenous peoples

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the growing emphasis placed by the international community on the principle of environmental sustainability. Indeed, by aligning their claims with a fundamental contemporary concern of States,2 indigenous peoples successfully increased their chances of obtaining a fair and adequate response to their human rights claims.

2.  The gravity and urgency of the situation of indigenous peoples The human rights claims of indigenous peoples are connected with the most fundamental right of a people, that is, the right to existence.3 In other words, the establishment of a historic and ambitious instrument such as the UNDRIP was not aimed at merely protecting or improving the socio-economic conditions of particularly vulnerable groups, but, rather, at guaranteeing, in a more fundamental way, their very survival as distinct societies. Crucially, the gravity and urgency of the situation of indigenous peoples has been acknowledged since the very beginning of the process of construction of the indigenous rights regime. The gradual opening of the United Nations (UN) to indigenous peoples began in the early 1970s when the (then) Sub-Commission on Prevention of Discrimination and Protection of Minorities appointed Special Rapporteur José Martínez Cobo to undertake a comprehensive study on the situation of indigenous peoples. Constituting the first step in the complex process that would ultimately lead to the adoption of the UNDRIP, Martínez Cobo’s work informed in many important ways the normative developments that would take shape following its publication. For this reason, it is important to consider in what terms he described the situation of indigenous peoples in the early 1980s: [The culture and social institutions of indigenous peoples] have been constantly under attack at all levels … it is only natural, therefore, that there should be … defensive/offensive reaction to the continual linguistic and cultural aggressions and attacks on their way of life, their social and cultural integrity and their very physical existence. They have a right to continue to exist … to keep and transmit their culture, their language, For a general discussion on framing processes and social movements, see D. Snow and R. Benford, ‘Ideology, Frame Resonance, and Participant Mobilization’ (1988) 1 International Social Movement Research pp. 197–217; and R. Benford and D. Snow, ‘Framing Processes and Social Movements: An Overview and Assessment’ (2000) 26 Annual Review of Sociology pp. 611–639. For a more specific discussion of framing as a form of alignment process, see R. Morgan, ‘Advancing Indigenous Rights at the United Nations:  Strategic Framing and its Impact on the Normative Development of International Law’ (2004) 13 Social & Legal Studies pp. 481–500, especially pp. 492–496. 3 N. Lerner, Group Rights and Discrimination in International Law (Martinus Nijhoff Publishers 2003) pp. 39–41. 2

The human rights claims of indigenous peoples 121

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their social and legal institutions and systems and their way of life, which have been illegally and unjustifiably attacked.4 Cobo’s words could hardly have been clearer. Far from advocating a transformation of indigenous peoples into a privileged category of international law, he was demanding the mere protection of their fundamental right to existence.5 Strong language in relation to indigenous peoples was also used in another influential international report produced only a few years after Cobo’s study, that is, the 1987 Report of the World Commission on Environment and Development (Brundtland Commission), which will be further discussed in section 3.1 below. A  significant passage from that report stressed that indigenous peoples were threatened with virtual extinction by the forces of insensitive economic development which severely disrupted their traditional lifestyles.6 In accordance with these early warnings, the various human rights bodies that, during its gestation period, contributed to shaping the normative content of the Declaration regularly emphasised the gravity of the situation of indigenous peoples. For example, a study of the Working Group on Indigenous Populations warned that uncontrolled economic and industrial development led to a situation in which an increasing number of indigenous communities around the world found themselves ‘in a state of rapid deterioration’.7 Both the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (IACtHR) affirmed, in uncompromising tones, that special legal protection was needed to ensure the physical and cultural survival of indigenous peoples.8 In a similar fashion, the African Commission on Human and Peoples’ Rights pointed out Study of the Problem of Discrimination Against Indigenous Populations, Final Report submitted by the Special Rapporteur, Mr José Martínez Cobo, Conclusions, Proposals and Recommendations, UN Doc. E/CN.4 Sub.2/1983/21/Add.8 (28 June 1983)  para. 374, emphasis added. 5 Not surprisingly, the Working Group on Indigenous Populations, which, it should be remembered, was the first UN body created to deal specifically with indigenous issues following the publication of Cobo’s study, displayed from the beginning ‘a strong focus on the extensive violations of the right to life and other basic individual rights [of indigenous people]’. A. Eide, ‘From Prevention of Discrimination to Autonomy and Self-determination:  The Start of the WGIP, the Achievements Gained and Future Challenges’ in R. Dunbar-Ortiz, D. Sambo Dorough, G. Alfredsson, L. Swepston and P. Wille (eds), Indigenous Peoples’ Rights in International Law: Emergence and Application (IWGIA 2015) pp. 98–121, at p. 108. 6 Our Common Future, Report of the World Commission on Environment and Development, Annex to UN Doc. A/42/427 (4 August 1987) para. 46. 7 ‘Indigenous Peoples and their Relationship to Land’, Final Working Paper prepared by the Special Rapporteur, Mrs Erica-Irene A. Daes, UN Doc. E/CN.4/Sub.2/2001/21 (11 June 2001) para. 123. 8 See, for example, Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, OAS/Ser.L/V/II.96 Doc. 10 rev. 1 (24 April 1997) Chapter 9; and Saramaka People v. Suriname, IACtHR, Series C 172 (2007) para. 86. 4

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122  The human rights claims of indigenous peoples that the survival of indigenous cultures and ways of life was at risk because of systematic discrimination, various forms of exploitation, and political and social marginalisation.9 The gravity of the situation of indigenous peoples is better appreciated if analysed against the background of the injustices that these peoples suffered in the past. These historical wrongs, which have been described as ‘a criminal process that has persisted for centuries’,10 ranged from systematic exploitation of lands and resources to more violent actions such as persecution and mass killing. The words of the Dominican jurist Bartolomé de Las Casas, who witnessed the injustices perpetrated against the indigenous population of the Americas in the sixteenth century, provide a good indication of the gravity of such actions. Addressing the Prince of Spain, he expressed his hope that: Once Your Highness perceives the extent of the injustices suffered by these innocent peoples and the way in which they are being destroyed and crushed underfoot, unjustly and for no other reason than to satisfy the greed and ambition of those whose purpose it is to commit such wicked atrocities, Your Highness will see fit to beg and entreat His Majesty to refuse all those who seek royal licence for such evil and detestable ventures, and to put a stop once and for all to their infernal clamours.11 Historical accounts such as that of Las Casas suggest that indigenous peoples suffered some of the world’s worst violations of human rights. Indeed, even authors who question the existence of two distinct legal regimes for indigenous peoples and other minority groups admit that the subjugation of indigenous peoples was, in comparison, a more brutal process.12 Crucially, these grave injustices did not cease centuries ago. For example, it is instructive that Article 39 of the Inter-American Charter of Social Guarantees, adopted in 1948, required that: In those countries where the problem of native population exists, the necessary measures shall be taken to provide the Indian protection and assistance, protecting his life, liberty, and property, and defending him from extermination, and safeguarding him from oppression and exploitation, protecting him from poverty, and providing adequate education.13 Report of the African Commission’s Working Group of Experts on Indigenous Populations/ Communities, adopted by the African Commission on Human and Peoples’ Rights by Resolution 65 (XXXIV) 03 (20 November 2003) paras. 89 and 90. 10 R. Falk, ‘The Rights of Peoples (in Particular Indigenous Peoples)’ in J. Crawford (ed.), The Rights of Peoples (Clarendon Press 2001) p. 35. 11 B. de Las Casas, A Short Account of the Destruction of the Indies (Penguin Classics 2004) p. 7. 12 W. Kymlica, ‘Beyond the Indigenous/Minority Dichotomy’ in S. Allen and A. Xanathaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart 2011) p. 201. 13 Inter-American Charter of Social Guarantees, adopted by the Ninth International Conference of American States, Final Act, Resolution XXXIX, 29 (1948), emphasis added. 9

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The human rights claims of indigenous peoples 123 There is also ample evidence of severe injustices being committed against indigenous peoples in more recent times. Among the most well-known examples, mention should be made of the Australian policy of forcible removal of indigenous and mixed children from their families, which remained in force in that country until the early 1970s.14 According to a report of the Australian Human Rights and Equal Opportunity Commission, these children were removed in order to be assimilated into the mainstream culture so that Aboriginal people, as a distinct racial group, would ultimately disappear.15 Remarkably, the Commission took the view that this policy amounted to a form of genocide,16 as established by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).17 A similar policy was implemented in Canada, where residential schools were set up in the late nineteenth century in order to remove and isolate indigenous children from the influence of their families, traditions and cultures, and to assimilate them into the dominant culture.18 These schools operated until the 1990s, although most of them were closed in the 1970s.19 In its 2015 report on the impact and legacy of the residential school system, the Truth and Reconciliation Commission of Canada concluded that the latter was aimed ‘to cause Aboriginal peoples to cease to exist as distinct legal, social, In 2008, the Prime Minister of Australia apologised in Parliament to all Aboriginal and Torres Strait Islander peoples for laws and policies that had ‘inflicted profound grief, suffering and loss’. See Indigenous Peoples and Boarding Schools:  A  Comparative Study, Note by the Secretariat, UN Doc. E/C.19/2010/11 (1 February 2010) para. 47. 15 ‘Bringing Them Home:  Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families’ (1997), produced by the Australian Human Rights and Equal Opportunity Commission. 16 ‘The policy of forcible removal of children from Indigenous Australians to other groups for the purpose of raising them separately from and ignorant of their culture and people could properly be labelled “genocidal” in breach of binding international law from at least 11 December 1946 … The practice continued for almost another quarter of a century.’ Ibid. 17 Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948), United Nations, Treaty Series, vol. 78, p. 277. 18 Formal apology made by Prime Minister Stephen Harper on 11 June 2008, at https:// www.aadnc-aandc.gc.ca/eng/1100100015644/1100100015649 (accessed 20 September 2015). For more information, see the Indian Residential Schools section on the website of the Aboriginal Affairs and Northern Development Canada, at https://www.aadnc-aandc.gc.ca/ eng (accessed 20 September 2015). See also E. Metatawabin, Up Ghost River:  A  Chief’s Journey through the Turbulent Waters of Native History (Knopf Canada 2014), a memoir from a residential school survivor and former First Nations Chief. It should also be noted that on 10 May 2006 the Government of Canada announced the Indian Residential Schools Settlement, an agreement made between the Government of Canada, the Assembly of First Nations and legal representatives of both former residential school students and the churches involved in the schools. The settlement included a lump-sum payment for all survivors. Furthermore, in 2008, a Truth and Reconciliation Commission was created. For more information, see Indigenous Peoples and Boarding Schools: A Comparative Study, supra note 14, paras. 41 and 42. 19 In 2008, Canada offered a formal apology, recognising that this policy of assimilation was wrong and caused great harm to indigenous people and their culture. 14

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124  The human rights claims of indigenous peoples cultural, religious, and racial entities’.20 According to the Commission, this constituted cultural genocide.21 These forms of injustices extended beyond national boundaries. Assimilating indigenous peoples into mainstream societies remained the goal of the International Labour Organization’s strategy of engagement with indigenous issues until the late 1980s. It was only in 1989, when the International Labour Organization Convention on Indigenous and Tribal Peoples in Independent Countries (ILO 169) replaced the 1957 Convention on Indigenous and Tribal Populations (ILO 107), that the latter’s assimilative character was expressly and emphatically repudiated. As explained in the Preamble to ILO 169, one of the reasons behind the creation of the new convention was precisely the necessity to ‘remov[e]‌the assimilationist orientation of [ILO 107]’.22 The latter was founded on the assumption that indigenous peoples were temporary societies destined to disappear with modernisation. Thus, instead of aiming to recognise and respect cultural diversity, ILO 107 sought the dissolution of indigenous identities and their assimilation into mainstream societies. 2.1  International law and the injustices against indigenous peoples The previous discussion has suggested that the moral dimension underpinning the human rights claims of indigenous peoples should be seen as one of the variables accounting for the positive recognition of indigenous rights in international law. One particular aspect of this moral dimension, namely the delay which characterised the intervention of the international community, was only alluded to in the previous pages. This important element will now be examined in some detail, together with a discussion of the role played by international law in permitting severe injustices to be committed against indigenous peoples. Honouring the Truth, Reconciling for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada (June 2015) p. 1. 21 Ibid. The concept, and position, of cultural genocide in international law will be considered in section 2.2 of this chapter below. Australia and Canada were not the only States that engaged in such policies. For a discussion of the American government’s policies of forced assimilation of Native American children in the nineteenth and twentieth centuries, see L. Graham, ‘Reparations, Self-Determination, and the Seventh Generation’ (2008) 21 Harvard Human Rights Journal pp. 47–104. For a broader comparative discussion of these policies in various countries, see Indigenous Peoples and Boarding Schools, supra note 18. 22 This important passage of the Preamble, already highlighted in Chapter  4, reads as follows: ‘Considering that the developments which have taken place in international law since 1957, as well as developments in the situation of indigenous and tribal peoples in all regions of the world, have made it appropriate to adopt new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards.’ ILO Convention No. 169 of 1989 concerning Indigenous and Tribal Peoples in Independent Countries, at www.ilo.org/public/english/indigenous (accessed 20 September 2015). 20

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The human rights claims of indigenous peoples 125 It is well known that during the colonial era indigenous peoples were subjugated by European conquerors, dispossessed of their lands and deprived of their sovereignty.23 International law played a key role in, at least, facilitating the commission of such injustices. As noted by Cassese, at that time international law offered European powers a number of legal ways to render conquests smooth and easy.24 In particular, European States were authorised to acquire sovereignty over indigenous territories by either conquest, or occupation of what was considered terra nullius. With regard to conquest, although it was at the time a valid way of acquiring territory,25 the norms that regulated it were nevertheless disrespected, or only partially applied, with respect to indigenous peoples.26 For example, while conquest represented a legitimate means of transfer of sovereignty following a war, in many situations there was no genuine war between indigenous peoples and their colonisers.27 Furthermore, although a formal act of annexation was needed in order to obtain title to territory,28 generally States did not make any such acts after the conquest of indigenous territories. Lastly, the so-called acquired rights of the conquered peoples, and in particular their property rights, were not respected, contrary to the recognised doctrine that a change of sovereignty did not affect them.29 That said, it is the second means As Gilbert noted, ‘colonization was not only a European fashion  – other non-European imperial powers have conquered indigenous territories since time immemorial … However, international law was mainly fashioned by European powers. In their conquests, the European colonizers were adept at using the law as a tool to legitimize and justify their actions. It is relatively undeniable that most of the debates that gave birth to the laws relating to territory and possession took place within the boundaries of Europe.’ J. Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (Transnational Publishers 2006) p. 4. 24 A. Cassese, International Law (Oxford University Press 2004) p.  28. Similarly, Anghie has noted that earlier theories of international law ‘endorsed the conquest and exploitation of non-European peoples’. A. Anghie, ‘Colonialism and the Birth of International Institutions:  Sovereignty, Economy, and the Mandate System of the League of Nations’ (2002) 34 New York University Journal of International Law and Politics pp. 513–533, at p. 515. 25 Indeed, international law has only recently established that ‘no territorial aggression is or shall be recognized as lawful’. See UN General Assembly Resolution 3314 (XXIX) (14 December 1974). 26 For an account, see Gilbert, Indigenous Peoples’ Land Rights under International Law, supra note 23, pp. 14 and 15. 27 In the words of the Permanent Court of Justice, ‘conquest only operates as a cause of loss of sovereignty when there is a war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State’. The Court also specified that ‘conquest does not apply in the case where a settlement has been established in a distant country’. Legal Status of Eastern Greenland (Denmark v. Norway) (1933) PCIJ. Series A/B, No. 53, p. 29. 28 L. Oppenheim, International Law, H. Lauterpacht (ed.) (7th edn, Longmans 1948) pp. 495–528. 29 Vitoria, for one, noted that ‘even if the war is fought by just title, the belligerent does not thereby have the power to eject the enemy from their dominions and despoil them of their property at whim; he can act only as far as is necessary to ward off injustices and secure safety for the future’. In another words, in case of an intervention, dispossession of one’s property 23

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126  The human rights claims of indigenous peoples of acquisition, i.e. occupation of what was regarded terra nullius, which bears more relevance here. The doctrine of terra nullius aptly symbolises the distinguishing character of an era where indigenous peoples’ rights were fully disregarded and indigenous cultures fully disrespected. While in the case of conquest States applied the relevant rules and principles in a discriminatory manner, the terra nullius doctrine was discriminatory per se. According to the latter, indigenous peoples did not own the land they occupied. This straightforward position must be read in combination with the assumption that only effective occupation would determine sovereignty over a territory. The consequence of this theory is that European powers could legitimately dispossess indigenous peoples of their lands, for they did not actually own them. Although not all colonisers relied directly on the doctrine of terra nullius to justify their expansions, the idea that an empty land (defined as empty either because it was uncultivated or ungoverned) could be occupied by others was commonly invoked during the colonial era.30 Indeed, the concepts of terra nullius and effective occupation were fairly common among seventeenthand eighteenth-century theorists of international law.31 Not surprisingly, the very international system that developed following the Westphalian settlement32 endorsed theories of property based precisely on the capacity of a government to effectively control its territory, leading to the imposition of the Western model of the Nation-State. The latter strongly contrasted with the indigenous models of society grounded on kinship ties, centred on a community-based approach to politics, and lacking a centralised authority and a delimited territory.33 As a result, indigenous peoples were, first,

was to be seen as an exception rather than the rule. F. Vitoria, Political Writings (Cambridge University Press 2005) p. 226. 30 The doctrine, by contrast, was officially embraced in Australia. 31 For example, Grotius noted that land could only be effectively owned if boundaries or construction were present, so that ‘vacant land used only by hunters and gatherers, that is, uncultivated land, remained common and available for appropriation’. See D. Boucher, Political Theories of International Relations (Oxford University Press 1998) p. 218. Referring to a man’s portion of land, Locke maintained that ‘if either the grass of his enclosure rotted on the ground, or the fruit of his planting perished without gathering and laying up, this part of earth, notwithstanding his enclosure, was still to be looked on as waste, and might be the possession of any other’. This means that a government could only claim jurisdiction over lands which were cultivated and therefore occupied. J. Locke, Il Secondo Trattato sul Governo (Rizzoli 2004) p. 110, para. 38. 32 The expression ‘Westphalian settlement’ refers to the peace treaties of 1648, signed in the Westphalian towns of Münster and Osnabruck, which brought the Thirty Years’ War (1618–1648) to an end. The Peace of Westphalia is conventionally referred to as marking the birth of an international system based on the plurality of independent States, consecrating what would become a central principle of modern international law, that is, the principle of State sovereignty. See A. Cassese, International Law (2nd edn, Oxford University Press 2005) p. 24. 33 See J. Anaya, Indigenous Peoples and International Law (2nd edn, Oxford University Press 2004) pp. 19–26.

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The human rights claims of indigenous peoples 127 subjugated and forcibly deprived of their sovereignty, and, later, doomed to be excluded by the newly constituted international State system. The discriminatory inclination towards indigenous peoples continued with the advent of the League of Nations. One episode is often singled out as evidence of both the continued denial of indigenous peoples’ rights and the perseverance of their spirit and efforts. In 1923, Levi General Deskaheh, an indigenous leader and spokesman of the Confederation of the Six Nations,34 travelled to Geneva to speak to the League of Nations in what has been described as a ‘pioneering international lobbying effort’.35 His aim was to address the Council of the League in order to discuss a dispute with Canada over self-government issues. Labelling this as a domestic claim, the Council did not allow him to speak. His effort, however, did not go totally unnoticed as representatives of some States requested that he be given at least the opportunity to be heard. Despite this appeal, the question was finally removed from the League’s agenda, forcing Deskaheh, dismayed by the cruel indifference of the League of Nations,36 to leave Geneva without a fair hearing. Not surprisingly, in the same period the conservative approach taken by the League’s Council towards indigenous peoples’ claims found support in the practice of the Permanent Court of International Justice, which, in a 1933 dispute between Norway and Denmark over the legal status of Greenland, did not take note of the actual occupation of the Inuit, i.e. the indigenous people of the island, in deciding the case.37 States continued to be unresponsive to indigenous peoples’ claims even during the early existence of the UN. Among other things, indigenous peoples did not benefit from the UN-sponsored process of decolonisation. In 1962, the General Assembly set up the Special Committee on Decolonization

The Confederation of Six Nations is composed of the following nations:  Seneca, Cayuga, Onondaga, Oneida, Mohawk and Tuscarora. They inhabited the north-eastern region of North America and today live in several scattered communities in New York State, Ontario, Quebec, Oklahoma and Wisconsin. 35 R. Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (University of California Press 2003) p. 32. 36 It is reported that Deskaheh wrote, in November 1924, the following words to the editor of a Swiss journal: ‘Since several months I am against the most cruel indifference … My appeal to the Society of Nations has not been heard … It is in this dreadful agony that I take the advantage to cry out that injustice … to my Brothers from all races and all religions. Too long we have suffered from the tyranny of our neighbors who tread under feet our Right to laugh at the Pact which binds them … Our appeal is for all those which are animated by the spirit of justice and we ask them their benevolent help.’ Quoted in C. Carmer, My Kind of Country: Favorite Writings about New York (Syracuse University Press 1995) p. 172. 37 The fact that the indigenous Inuit occupied that land did not affect the Court’s decision to dismiss Norway’s assertion that it had conquered part of Greenland on the basis of the terra nullius doctrine. Norway’s claim was eventually rejected because Denmark demonstrated that it had established sovereignty on the territory and other members of the international community had recognised it. Legal Status of Eastern Greenland (Denmark v.  Norway), 1933 PCIJ Series A/B, No. 53. 34

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128  The human rights claims of indigenous peoples with a view to monitoring the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples.38 As noted by Barsh, this Committee carefully avoided dealing with issues of internal colonisation that affected indigenous peoples. The Committee’s position at the time was that ‘no formal action would be taken [with respect to indigenous issues] unless expressly requested by the General Assembly’.39 Such a request, however, was never made, and it would be another 20 years before the UN pledged to tackle the question of indigenous peoples’ rights. All the above suggests that the moral responsibility of States and international institutions for the severe injustices suffered by indigenous peoples was made worse by the former’s belated response to the latter’s legitimate grievances. This important point has been fully acknowledged by the Inter-American Commission on Human Rights, which once highlighted that ‘for historical reasons and because of moral and humanitarian principles, special protection for indigenous populations constitutes a sacred commitment of the states’.40 In a similar way, Special Rapporteur Miguel Alfonso Martínez noted, in a well-known study on treaties and other arrangements between States and indigenous populations, that ‘humanity has contracted a debt with indigenous peoples because of the historical misdeeds against them’. ‘Consequently’, he added, ‘these must be redressed on the basis of equity and historical justice.’41 Academic commentators have further elaborated on this point, suggesting that the doubtful origins of the (European) international society, associated with the progressive dispossession and subjugation of non-European peoples, constrained it in a status of moral illegitimacy. In this sense, recognising the rights of indigenous peoples represents a way to (re-)acquire moral standing.42

UN General Assembly Resolution 1514 (XV) (14 December 1960). R. Barsh, ‘Minorities:  The Struggle for a Universal Approach’ in G. Alfredsson and P. Macalister-Smith (eds), The Living Law of Nations (Engel 1996) pp. 143–156, at pp. 147–148. 40 Resolution on Special Protection for Indigenous Populations  – Action to Combat Racism and Racial Discrimination, OEA/Ser.L/V/II/.29 Doc. 41 rev. 2 (13 March 1973), cited in Inter-American Commission on Human Rights, Report 12/85, Case No. 7615, Yanomami v. Brazil (5 March 1985) para. 8. 41 Study on Treaties, Agreements and Other Constructive Arrangements between States and Indigenous Populations, Final Report by Mr Miguel Alfonso Martinez, UN Doc. E/CN.4/ Sub.2/1999/20 (22 June 1999) para. 255. 42 P. Keal, European Conquest and the Rights of Indigenous Peoples:  The Moral Backwardness of International Society (Cambridge University Press 2003). In a similar way, Macklem has articulated a distributive account of international human rights (especially the right to self-determination) that focuses on the injustices produced by the structure and operation of the international legal order. According to this account, whether, and the extent to which, the human rights claims of minority groups, including indigenous peoples, merit international legal endorsement ‘turns on the legitimacy of the boundaries of the broader political community in which – and against which – such rights are asserted’. In this sense, ‘international indigenous rights [can be said to] mitigate some of the adverse consequences of how international law validates morally suspect colonization projects that participated in the production of the existing distribution of sovereign power’. P. Macklem, ‘Minority Rights in International 38 39

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The human rights claims of indigenous peoples 129 Thus, it can be suggested that the way in which States and international institutions finally responded to the claims of indigenous peoples was shaped to some extent by what some authors have referred to as the ‘guilty feeling’ of the international community.43 As the latter became increasingly concerned with human rights and fundamental freedoms, as well as adamant to distance itself from the past colonial practice, it was almost inevitable that special attention would be paid to the thorny question of indigenous peoples. Once this happened, States and international institutions had additional reasons to respond adequately to the concerns of these groups, as doing so was required not only by the gravity of the situation but also the realisation that a combination of past conduct and (more recent) failure to act had contributed significantly to the deterioration of indigenous people’s living conditions. 2.2  The Declaration and the gravity and urgency of the situation of indigenous peoples The seriousness of the situation of indigenous peoples is fully reflected in the content of the Declaration. After recognising that ‘indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources’, the Preamble affirms the ‘urgent need to respect and promote the inherent rights of indigenous people’, while Article 43 establishes that the rights recognised in the instrument constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world. Another provision powerfully illustrates the gravity of the situation which the UNDRIP was called to address. Article 7 states that ‘indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group’.44 Genocide is a firmly established crime under international law that relates predominantly, and yet not exclusively, to the physical dimension of the right to existence of a national, ethnical, racial or religious

Law’ (2008) 6 International Journal of Constitutional Law pp. 531–552 and ‘Indigenous Recognition in International Law: Theoretical Observations’ (2008) 30 Michigan Journal of International Law pp. 177–210. 43 K. Coates, A Global History of Indigenous Peoples: Struggle and Survival (Palgrave Macmillan 2004) pp. 266–272; and W. Kymlicka, Multicultural Odysseys:  Navigating the New International Politics of Diversity (Oxford University Press 2007) p. 269. Consider also the words of the former UN Secretary General Kofi Annan: ‘the answer to [the] grave threats [faced by indigenous peoples] must be to confront them without delay. History shows us that unless we grapple with such problems promptly and decisively, and in a spirit of solidarity and respect, they will only fester and deepen.’ Secretary-General’s Address to the Opening of Third Session of the Permanent Forum on Indigenous Issues (10 May 2004), at www. un.org/sg/STATEMENTS/index.asp?nid=918 (accessed 20 September 2015). 44 Emphasis added.

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130  The human rights claims of indigenous peoples group.45 However, a group’s existence may also be threatened through the erosion of its own identity, of which culture, language and religion represent central pillars. For this reason, indigenous peoples sought to include in the Declaration a provision protecting them against cultural genocide or ethnocide.46 According to the 1981 Declaration of San Jose of the United Nations Educational, Scientific and Cultural Organization, ‘ethnocide, that is cultural genocide, is a violation of international law [which takes place when] an ethnic group is denied the right to enjoy, develop and transmit its own culture and its own language, whether collectively or individually’.47 Several States opposed an express reference to cultural genocide in the UNDRIP on the basis that no such crime actually existed in international law.48 While symbolically significant, the absence of a direct reference to cultural genocide in the Declaration has limited practical effects in light of the final language of Article 8, which affirms that indigenous peoples have the right ‘not to be subjected to forced assimilation or destruction of their culture’. Evidently, this provision captures the essence of cultural genocide, providing indigenous peoples with the necessary protection against attempts to destroy the structures and practices that allow them to continue to exist as distinct groups.49 This is particularly true considering that Article 8 is situated within a broader normative framework

According to Article 1 of the Genocide Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. Genocide Convention, supra note 17. 46 The original Article 6 included in the draft declaration adopted by the Working Group on Indigenous Populations in 1993 read as follows:  ‘Indigenous peoples have the collective and individual right to be protected against ethnocide and cultural genocide.’ UN Doc. E/ CN.4/Sub.2/1993/26 (8 June 1993). 47 Declaration of San Jose, adopted on 11 December 1981 by the Conference of Specialists on Ethnocide and Ethnodevelopment in Latin America, convened by UNESCO and the Latina American School of Social Science, UN Doc. E/CN.4/Sub.2/1982/2/Add.1 (Annex VI). The Declaration of San Jose continues: ‘this involves an extreme form of massive violation of human rights and, in particular, the right of ethnic groups to respect for their cultural identity’. 48 While it is true that cultural genocide is not envisaged in the Genocide Convention, it is interesting to note that efforts to include a reference to it in the Convention were opposed precisely by those States with an indigenous population within their borders. J. Morsink, ‘Cultural Genocide, the Universal Declaration, and Minority Rights’ (1999) 21 Human Rights Quarterly pp. 1009–1060. See also S. Pruim, ‘Ethnocide and Indigenous Peoples: Article 8 of the Declaration on the Rights of Indigenous Peoples’ (2014) 35 Adelaide Law Review pp. 269–308. 49 According to the Truth and Reconciliation Commission of Canada, these attempts include: seizing lands, forcibly transferring populations, banning languages, persecuting spiritual leaders, banning spiritual practices, destroying objects of spiritual value and, finally, disrupting families in order to prevent the transmission of cultural values and identity from one generation to the next. Honouring the Truth, Reconciling for the Future, supra note 20, p. 1. 45

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The human rights claims of indigenous peoples 131 that recognises increasing importance to cultural identity and cultural diversity. Indeed, the international community has showed increasing concern with these two concepts, ultimately endorsing the view that ‘all cultures form part of the common heritage belonging to all humankind’50 and therefore deserve special protection.51 In this sense, the failure to protect indigenous peoples and cultures acquires an additional dimension, that is to say, it becomes an issue of concern of the international community as a whole.52 If the strong moral force of indigenous peoples’ rights is powerfully reflected in provisions such as Articles 7 and 8, the urgency and gravity of the situation of indigenous peoples informed more generally the broader content of the Declaration. In this sense, the incorporation of strong and progressive rights in the UNDRIP can be linked to the seriousness of the threats posed to the physical and cultural existence of indigenous peoples. Thus, the endorsement of the right to self-determination responds to the need for indigenous peoples to determine and control their own destiny, including their economic, social and cultural development, to live according to their own values and to be respected by their non-indigenous neighbours.53 As an ongoing process of choice, self-determination becomes crucial to guarantee both the physical and cultural security of indigenous groups.54 Similarly, protecting the land rights of indigenous peoples is necessary to maintain and strengthen their cultures and traditions, as well as to guarantee the use and control of natural resources that are key to their subsistence.55 Finally, in

See, for example, the Declaration of the Principles of International Cultural Cooperation, adopted on 4 November 1966 by the General Conference of UNESCO. 51 See, for example, UN General Assembly Resolution 61/155 of 7 March 2008 on Human Rights and Cultural Diversity. 52 This final point is well captured by the words of former UN Secretary General Boutros-Ghali, who once noted that ‘in respecting [indigenous peoples], defending them, in helping them to take their place in the community of nations and in international life, it is perhaps the world itself that we are protecting, according to the view that we have of this very diverse world. And, ultimately, we will be protecting every culture, every people, every human being – in the final analysis, each one of us is a unique being.’ B. Boutros-Ghali, ‘Foreword’ in A. Ewen (ed.), Voice of Indigenous Peoples: Native People Address the United Nations (Clear Light 1994) p. 15. 53 E. Daes, ‘Striving for Self-Determination for Indigenous Peoples’ in Y. Kly and D. Kly (eds), In Pursuit of the Right to Self-Determination:  Collected Papers & Proceedings of the First International Conference on the Right to Self-Determination & the United Nations (Clarity Press 2000) pp. 50–62, at p. 58. 54 The Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention, Report of the International Conference of Experts held in Barcelona (21–27 November 1998), organised by the UNESCO Division of Human Rights Democracy and Peace and the UNESCO Centre of Catalonia, at p. 19. 55 As highlighted by the Inter-American Court of Human Rights (IACtHR), ‘the close ties of indigenous peoples with the land [represent] the fundamental basis for their cultures, their spiritual life, their integrity, and their economic survival’. See Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Series C No. 79, judgment of 31 August 2001, para 149. See also the broader discussion of land rights in Chapter 2. 50

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132  The human rights claims of indigenous peoples defining the meaning and scope of indigenous peoples’ participatory rights, the principle of free, prior and informed consent (FPIC) is essential to the effective exercise of both the right to self-determination and land rights. In practical terms, participating in an effective manner in decision-making processes affecting their rights represents the crucial condition for the respect of the rights and aspirations of indigenous peoples. Without effective rights to participation and consultation, the rights of indigenous peoples would be deprived of their actual substance, with inevitable repercussions on the lives and cultures of these peoples.

3.  The environmental dimension of indigenous peoples’ rights Although less powerfully, the environmental character of indigenous peoples’ human rights claims can also be said to have contributed to the positive recognition of indigenous rights in international law. In particular, in light of the central position that the concept of sustainable development has recently acquired in the international political and legal systems, the fact that the international community has embraced the idea of indigenous peoples as guardians of the environment positively affected the treatment of this group’s demand for justice. To better understand this important point, it is useful to briefly describe the meaning and status of sustainable development in international law. The relationship between economic growth and the environment lies at the core of the principle of sustainable development,56 whose central assumption is that environmental protection constitutes an integral part of the development process and therefore should not be considered in isolation from it.57 Put simply, this means that a sort of compromise between economic development and preservation of the environment must necessarily be struck. This conclusion derives essentially from two interrelated facts: first, the acceptance that natural resources are exhaustible; and, second, the realisation that phenomena such as pollution, global warming and deforestation seriously threaten both the survival of the ecosystem and human lives.58 Given these premises, there is little doubt that in the medium to long term, promoting sustainable development is in States’ interests. In the short term, however, many States More generally, the concept of sustainable development is based on three pillars: economic development, social development and environmental protection. See D. McGoldrick, ‘Sustainable Development and Human Rights:  An Integrated Conception’ (1996) 45 International and Comparative Quarterly pp. 796–818, at p. 796. For a broader discussion, see N. Schrijver, ‘The Evolution of Sustainable Development in International Law: Inception, Meaning and Status’ (2007) 329 Hague Academy of International Law Recueil des Cours pp. 217–412. 57 ‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.’ Rio Declaration on Environment and Development, 31 ILM 874 (1992), Principle 4. 58 See V. Lowe, International Law (Oxford University Press 2007) p. 250. 56

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The human rights claims of indigenous peoples 133 may find it problematic to adjust their national economic growth in order to protect the environment. Furthermore, it is particularly difficult to determine how, and to what extent, each State should contribute to the achievement of this collective goal. For these reasons, it is not surprising that neither international treaty law nor international customary law straightforwardly demand that development be sustainable. Nevertheless, it seems safe to argue that sustainable development has come to represent ‘the leading concept of international environmental policy’.59 This proposition is fully supported by a range of international environmental instruments that clearly affirm the centrality of sustainable development.60 Crucially, sustainable development has also become a recognised principle both in the context of international economic institutions61 and the jurisprudence of the International Court of Justice.62 In light of such a widespread consensus, it has been rightly noted that ‘few states would quarrel with the proposition that development should in principle be sustainable and that all natural resources should be managed in this way’.63 For the purposes of this discussion, it is particularly important that the increasing concern about environmental issues at the institutional level has contextually encouraged deeper reflections within societies on the relationship between man and nature. Against this background, the following sections will examine how the human rights claims of indigenous peoples importantly interact with the idea of environmental sustainability. 3.1  Indigenous peoples and environmental sustainability The contents of both public statements made during the negotiations on the UNDRIP and documents adopted at international meetings and conferences suggest that indigenous peoples’ representatives have regularly, and powerfully, accentuated the environmental dimension of their human rights claims. References to their spiritual relationship with lands, natural resources and Mother Earth are central to their demands for the recognition of their A. Boyle, ‘Human Rights and the Environment: Where Next?’ in B. Boer (ed.), Environmental Law Dimensions of Human Rights (Oxford University Press 2015) pp. 201–240, at p. 222. See also Cassese, International Law (2nd edn), supra note 32, pp. 491–492; C. Redgwell, ‘International Environmental Law’ in M. Evans (ed.), International Law (4th edn, Oxford University Press 2014) pp. 688–726, at p. 692. 60 Among others, the 1992 Convention on Climate Change; the 1992 Convention on Biological Diversity; the 1992 Rio Declaration on Environment and Development; and the 2002 Johannesburg Declaration on Sustainable Development. 61 See, for example, the 1994 Marrakech Agreement Establishing the World Trade Organization, preambular para. 1.  For an overview of the World Bank’s commitment to help achieve the Millennium Development Goals, see www.worldbank.org/mdgs (accessed 20 September 2015). 62 Gabcikovo-Nagymaros Project (Hungary v.  Slovakia) Judgment, ICJ Reports 1997, p.  7, para. 140. 63 P. Birnie, A. Boyle, and C. Ridgwell, International Law and the Environment (3rd edn, Oxford University Press 2009) p. 125. 59

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134  The human rights claims of indigenous peoples human rights.64 Likewise, the promotion of a vision of development as a multifaceted concept that cannot be separated from culture and identity, and that can only be achieved by respecting rather than challenging the limits of the natural world,65 features typically in their stories and narratives.66 Through this environmental rhetoric, indigenous peoples not only display and celebrate their environmental values and practices,67 but also seek to promote themselves as the ideal guardians of the environment. Contextually, they warn the international community about the serious negative consequences of the modern processes of globalisation for the natural world.68 Crucially, this narrative has created a broadly shared perception that indigenous peoples’ lifestyles are inherently sustainable and that indigenous peoples can positively contribute to the global struggle for the preservation of the environment. In reality, some anthropologists have warned against the uncritical romanticisation of indigenous peoples as the primary stewards of the planet’s natural resources, calling instead for more realistic and socially contextualised assessments of their diverse approaches to nature.69 Given For example, one indigenous representative once noted that, ‘the issue for indigenous peoples is the land; indigenous peoples are one with the land’. W. Means, ‘International Indian Treaty Council’ in A. Ewen (ed.), Voice of Indigenous Peoples: Native People Address the United Nations (Clear Light 1994) p. 60. 65 According to indigenous peoples, the concept of ‘development with culture and identity’ is underpinned by the values of reciprocity, solidarity, equilibrium and collectivity. It is also related to the recognition of collective rights and the promotion of security and greater control of lands, territories and resources. For a broad discussion, see ‘Indigenous Peoples: Development with Culture and Identity: Articles 3 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples’, Report of the International Expert Group Meeting, UN Doc. E/C.19/2010/14 (5 February 2010). 66 See, for example, the 1999 Indigenous Peoples’ Seattle Declaration; the 2002 International Indigenous Peoples Summit on Sustainable Development; the 2003 International Cancun Declaration of Indigenous Peoples; the 2009 Anchorage Declaration (Indigenous Peoples’ Global Summit on Climate Change); and the People’s Agreement adopted at the 2010 World Peoples’ Conference on Climate Change and the Rights of Earth. 67 R. Morgan, Transforming Law and Institution: Indigenous Peoples, the United Nations and Human Rights (Ashgate 2011) p. 134. 68 Consider, for example, the following remark made on the occasion of the 2014 World Conference on Indigenous Peoples by the UN Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli Corpuz, a well-known figure in the global indigenous movement:  ‘Indigenous peoples are among those who have and continue to contribute significantly in terms of saving the earth, by mitigating climate change and strengthening communities who truly believe and practice sustainability, stewardship and harmony with nature, mutual reciprocity and collectivity. We are not simply victims of a system which promotes unrelentless exploitation of the earth and economic growth, generation of bigger profits at the expense of social protection, and super-individualism. We are contributing solutions to the crises we all face. It will be to the detriment of the earth and the human society if we continue to be excluded in decision-making processes which impact us and our rights get trampled on a daily basis.’ At http://unsr.vtaulicorpuz.org/site/index.php/en/ statements/31-statement-un-wcip2014 (accessed 20 September 2015). 69 See A. Ross, K. Sherman, J. Snodgrass, H. Delcore and R. Sherman, Indigenous Peoples and the Collaborative Stewardship of Nature:  Knowledge Binds and Institutional Conflicts (Left Coast Press Inc. 2010) pp. 59–93. 64

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The human rights claims of indigenous peoples 135 the many diversities among indigenous peoples, it seems only natural that the practices of one group may be less sustainable than those of another. Similarly, while some indigenous communities may be opposing industrial development on their lands, others may contemplate it, with various degrees of reluctance, in order to improve their impoverished and debilitating living conditions.70 It follows that the generic representation of indigenous peoples as ecological guardians should be approached with a certain dose of prudence. That said, the argument that indigenous peoples may be better equipped to provide valuable answers to the world’s environmental problems remains valid. This is so because high levels of social cooperation, local-scale self-sufficiency and concern for the well-being of posterity, notably all typical elements of indigenous traditions and lifestyles, are also relevant features of environmental sustainability. Likewise, indigenous peoples’ spiritual relationship with the natural world signals a way of relating to nature which appears essentially compatible with sustainable models.71 While the above caveat was necessary, the aim of this section is not to discuss the actual degree of sustainability of indigenous practices, but rather to highlight the way in which States and international institutions have factually perceived the indigenous peoples’ way of approaching nature. In this respect, the crucial point to make is that the international community has consistently regarded indigenous peoples’ lifestyles as environmentally friendly. This inclination has been visible since the time when the Brundtland Commission was created with the task of providing long-term guidance on how to deal successfully with the problems of protecting and enhancing the world’s environment.72 The final report produced by the Brundtland Commission in 1987 A story widely reported in the media a few years ago fully confirms this point. It refers to a case of disagreement among indigenous groups of Western Australia in relation to a plan to build a $30 billion liquefied natural gas plant in James Price Point. The largest Aboriginal group potentially affected by the project backed the plan with a view to building the economic basis for the future of their families. A different Aboriginal group, by contrast, strongly opposed the plant because of the location’s spiritual significance, accusing Aboriginal supporters of the project to be just ‘out for the money’ and having forgotten ‘how to connect to country’. For a detailed account, see ‘Rich in Land, Aborigines Split on How to Use it’, New York Times, 12 February 2011. 71 B. Richardson, ‘The Ties that Bind:  Indigenous Peoples and Environmental Governance’ in B. Richardson, S. Imai and K. McNeil, Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart 2009) pp. 337–370, at pp. 339–351. Consider also this instructive passage from a UN Report on Human Rights and the Environment: ‘Indigenous peoples have, over a long period of time, developed successful systems of land use and resource management. These systems, including nomadic pastoralism, shifting cultivation, various forms of agro-forestry, terrace agriculture, hunting, herding and fishing, were for a long time considered inefficient, unproductive and primitive. However, as world opinion grows more conscious of the environment and particularly of the damage being done to fragile habitats, there has been a corresponding interest in indigenous land-use practices. The notion of sustainability is the essence of both indigenous economies and their cultures.’ Human Rights and the Environment:  Preliminary Report, UN Doc. E/CN.4/Sub.2/1991/8 (2 August 1992) para. 25. 72 General Assembly Resolution 38/161 of 19 December 1983. 70

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is particularly important because it represented the first formal embracement of the concept of sustainable development at the international level.73 For the purposes of this discussion, it is especially instructive that, among other things, the report noted that: [Indigenous] communities are the repositories of vast accumulations of traditional knowledge … Their disappearance is a loss for a larger society which could learn a great deal from their traditional skills in sustainably managing very complex ecological systems.74 Since then, most international environmental instruments have subscribed to this view. Principle 22 of the Rio Declaration, for example, emphasises that indigenous peoples ‘have a vital role in environmental management and development because of their knowledge and traditional practices’.75 Accordingly, States should ‘recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development’.76 More emphatically, Chapter 26 of Agenda 21 highlights that: In view of the interrelationship between the natural environment and its sustainable development and the cultural, social, economic and physical well-being of indigenous people, national and international efforts to implement environmentally sound and sustainable development should recognize, accommodate, promote and strengthen the role of indigenous people and their communities.77 The Biodiversity Convention, an international treaty that imposes legal obligations on States parties, affirms that indigenous peoples’ knowledge and practices embody ‘traditional lifestyles relevant for the conservation and sustainable use of biological diversity’.78 Considering these important precedents, it is not surprising that the 2002 Johannesburg Declaration on Sustainable Development took express note of the vital role of indigenous peoples in promoting sustainable development.79 Although not an environmental

In particular, the report warned that development should ‘meet the needs of the present without compromising the ability of future generations to meet their own needs’. World Commission on Environment and Development, Our Common Future (Oxford University Press 1987) p. 43. 74 Ibid., pp. 114 and 115. 75 Rio Declaration on Environment and Development, supra note 57. 76 Ibid. 77 Agenda 21:  The UN Programme of Action from Rio, Chapter  26, para. 26(1), at https:// sustainabledevelopment.un.org/index.php?page=view&nr=23&type=400 (accessed 20 September 2015). 78 1992 Convention on Biological Diversity, Article 8(j) 31 ILM 818 (1992). 79 Adopted at the seventeenth plenary meeting of the World Summit on Sustainable Development (4 September 2002) para. 25. 73

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The human rights claims of indigenous peoples 137 instrument, the 2005 World Summit Outcome is also worth mentioning, as it represented, as noted in Chapter 3, one of the largest gatherings of world leaders in the history of the UN. On that occasion, the worlds’ heads of State and government re-affirmed their commitment to achieve the goal of sustainable development80 and, in that context, pledged to preserve and maintain the traditional practices of indigenous peoples that are relevant to the conservation and sustainable use of biological diversity.81 The tendency to equate indigenous peoples’ lifestyles with environmentally sound practices is also evident in various studies and reports produced within the UN human rights machinery. For example, a 2002 UN report highlighted that positive lessons could be learned in terms of better understanding of the relationship between human rights and the environment from the way in which indigenous peoples live and relate themselves to their environment.82 More emphatically, a 2013 study produced by the WGIP noted that: Indigenous populations have always lived in a wholesome natural environment, far from pollution, protecting and respecting the other forms of life that make up this environment. They have always lived in harmony with other living things in their environment without having to destroy them. They have fished, gathered and hunted strictly according to their needs, ensuring that both plant and animal life are replenished. They have always used their environment to feed, care for and clothe themselves – in a word, to lead a healthy lifestyle.83 UN specialised agencies have also subscribed to this view. For example, the United Nations Development Programme’s policy of engagement with indigenous peoples makes several express references to the sustainable development practices of indigenous peoples and their invaluable importance to the sustainable management of the environment.84 At the regional level, an influential organisation such as the EU has also formally endorsed the close relationship between indigenous peoples and environmental sustainability. The 1998 Council resolution establishing the EU guideline principles for engagement with indigenous peoples highlights that the latter have a special role both in maintaining and enhancing biological diversity and in providing

Ibid., para. 48. Ibid., para. 55(e). 82 Promotion and Protection of Human Rights Science and Environment, Report of the Joint OHCHR–UNEP Seminar on Human Rights and the Environment, UN Doc. E/ CN.4/2002/WP.7 (22 March 2002), Annex II, para. 16. 83 Working Paper on ‘Globalization and the Economic, Social and Cultural Rights of Indigenous Populations’, submitted by Mr El Hadji Guissè at the twenty-first session of the Working Group on Indigenous Populations, UN Doc. E/CN.4/Sub.2/AC.4/2003/14 (15 June 2003). 84 UNDP and Indigenous Peoples: A Policy of Engagement (UNDP 2001) paras. 11 and 43. 80 81

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unique sustainable development models for the conservation and use of natural resources.85 In conclusion, one could borrow the authoritative words of the UN Secretary General Ban Ki-moon to capture the essence of this virtually universal perception: Indigenous peoples have a close spiritual relationship with nature … [and] have been living in a ‘green economy’ for centuries … from the forests to the oceans, from the mountains to the deserts, around our world [indigenous peoples] are guardians of nature. We need [them] to help influence the decisions we make today on energy and the environment, decisions which will affect generations to come.86 3.2  Environmental sustainability and the Declaration In the context of the increasing importance of the principle of sustainable development in international law and politics, there is little doubt that the resonance of indigenous peoples’ claims was amplified by the group’s commitment to environmental sustainability. By partially aligning their claims with a major concern of the international community, indigenous peoples increased the chances of a positive recognition of their rights claims as States and international institutions felt almost compelled to embrace at least parts of their demands in order to remain loyal to their own environmental pledges.87 In other words, inasmuch as the international community strives to promote sustainable development, it should also seek to protect the cultures and traditions, and thus the rights, of those communities that live in harmony with nature. In this sense, the widely shared vision of indigenous peoples as groups living and using resources sustainably has arguably affected the content of the Declaration, which, in line with the international trend highlighted in the previous section, unequivocally affirms that ‘respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment’.88

Council Resolution of 30 November 1998: Indigenous Peoples within the Framework of the Development Cooperation of the Community and the Member States. 86 Remarks to the opening of the Permanent Forum on Indigenous Issues, Secretary-General Ban Ki-moon, General Assembly (16 May 2011), at www.un.org/apps/news/infocus/sgspeeches/ statments_full.asp?statID=1185#.U1qJzoWCSW8 (accessed 20 September 2015). 87 In the words of Morgan, ‘where authorities value, or purport to value, certain principles and norms, social movements can wrap up their claims in ways that call on those values, thus forcing authorities to embrace those claims’. R. Morgan, ‘Advancing Indigenous Rights at the United Nations:  Strategic Framing and its Impact on the Normative Development of International Law’ (2004) 13 Social & Legal Studies pp. 481–500, at p. 497. 88 It should also be noted that, despite being adopted at a time when sustainable development had yet to become a central feature of international environmental law, the Preamble to ILO Convention No. 169 highlighted the ‘distinctive contributions of indigenous and 85

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The human rights claims of indigenous peoples 139 It is in relation to the land rights of indigenous peoples that the above dynamic becomes particularly effective.89 Indigenous peoples’ distinct livelihoods and cultures depend on access to land and natural resources. If one accepts the vision of indigenous peoples as ecological guardians, the recognition and protection of their land rights becomes necessary to allow them to exercise effectively their customary resource management and sustainable use systems, with positive consequences for both their lives and the ecosystem. Thus, affirming the rights of indigenous peoples to maintain and strengthen their distinctive spiritual relationship with their lands and resources (Article 25), as well as to own, develop and control them (Article 26), serves the double purpose of protecting indigenous peoples’ lives and cultures, and promoting sustainable development. The same is true of other provisions concerning land rights, including Article 29, focusing on the right of indigenous peoples to the conservation and protection of the environment as well as the productive capacity of their lands and resources, and Article 32, recognising their right to determine and develop priorities and strategies for the development or use of their lands and resources. That said, it would be wrong to say that the environmental character of indigenous peoples’ claims only influenced the Declaration’s provisions concerning land rights. As illustrated in Chapter 2, the land rights of indigenous peoples can hardly be isolated, both practically and conceptually, from other fundamental rights and principles contained in the Declaration, particularly the right to self-determination and the principle of FPIC. For example, indigenous peoples maintain that sustainable development and self-determination are complementary principles.90 Self-determination is the basis for the well-being of indigenous communities and is realised through, inter alia, effective land rights and management. In this way, self-determination contributes to promoting sustainable economies and protecting the ecosystem. Evidently, FPIC is also associated with the idea of sustainability. By requesting that the voice of indigenous peoples is effectively heard before development projects are implemented on their ancestral lands, FPIC has vital implications for the way in which the land rights of indigenous peoples are effectively exercised. In this sense, FPIC is key to ensuring a balanced assessment of the economic, environmental and social considerations related to a tribal peoples to the cultural diversity and social and ecological harmony of humankind’. ILO Convention No. 169 of 1989 Concerning Indigenous and Tribal Peoples in Independent Countries, at www.ilo.org/public/english/indigenous (accessed 20 September 2015). 89 Indeed, the environmental connotations of indigenous land rights are so accentuated that, according to some, the latter ‘inhabit a special hybrid position between human rights and environmental protection’. M. Krepchev, ‘The Problem of Accommodating Indigenous Land Rights in International Investment Law’ (2015) 6 Journal of International Dispute Settlement pp. 42–73, at p. 72. 90 ‘Indigenous Peoples International Declaration on Self-Determination and Sustainable Development’, Rio de Janeiro (19 June 2012), at www.iwgia.org/news/search-news?news_ id=542 (accessed 20 September 2015).

140  The human rights claims of indigenous peoples development project, safeguarding those indigenous values and practices that contextually promote sustainable development.

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4.  Conclusions This chapter has continued the discussion begun in Chapter 5 on the dynamics, factors and circumstances that characterised the drafting and adoption of the UNDRIP. It has examined the relationship between the positive recognition of indigenous rights in international law and two distinguishing features of indigenous peoples’ human rights claims, reflecting on the extent to which the latter might have influenced and shaped the former. At one level, this discussion has revealed that the historical injustices suffered by indigenous peoples, the failure of States and international institutions to respond to them, and, as a result, the gravity and urgency of the situation of indigenous peoples are all elements that importantly affected the way in which States approached the demands of this group, and, consequently, the drafting and adoption of the UNDRIP. This suggests that the way in which human rights claims are morally perceived and contextualised may affect the way in which States approach the relevant process of legal validation,91 a circumstance that should be welcomed by the advocates of a more justice-oriented system of international law. At the same time, this dynamic may have some less desirable consequences inasmuch as it is taken to suggest that the human rights claims of certain groups may resonate less strongly than others and that, as a consequence, international law might tend to provide valid responses only to the most critical demands for justice. At another level, this chapter has suggested that the fact that indigenous peoples favour a custodial and non-materialistic approach to land and natural resources,92 subscribing to a vision of development that can only be achieved by respecting rather than challenging the limits of the natural world, must also be taken into account when assessing their legal achievements at the international level. This is especially true considering the increasing emphasis placed by the international community on the need to preserve the world’s environment, and the contextual relevance that the principle of sustainable development has acquired in the international legal system. By aligning their claims with a major concern of the international community such as environmental sustainability, indigenous peoples importantly amplified the resonance of their struggle for justice, making it more difficult for States to dismiss their

This should not be taken to suggest the existence of a strict moral hierarchy among human rights claims. Indeed, the latter are all inherently associated with the idea of dignity and worth of the human person. For a discussion of this issue, see T. Koji, ‘Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights’ (2001) 12 European Journal of International Law pp. 917–941. 92 J. Burger, Report from the Frontier: The State of the World’s Indigenous Peoples (Zed Books 1987) p. 12. 91

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The human rights claims of indigenous peoples 141 demands. This dynamic, whose actual effects will depend on the specific circumstances of each case, might be particularly valuable to certain groups struggling for the recognition of their human rights under international law. For example, it is telling that one of the ongoing strategies employed by peasants as part of their efforts to offset States’ resistance to their human rights claims follows precisely the model set by indigenous peoples. Thus, peasants are actively promoting the view that protecting and promoting their cultures and lifestyles contributes to protecting and promoting environmental sustainability in an attempt to strengthen their claims to lands and natural resources.93 In this sense, the environmental appeal of peasants’ human rights claims could play an important part in the process of recognition of these’ rights under international law.

Consider, for example, the following statement made during the early negotiations on the peasant declaration, where peasants described themselves as guardians of Mother Earth and reminded States of the important environmental benefits that would result from the recognition of their rights: ‘We are required to maintain [our physical, cultural and spiritual] relationship with Mother Earth for the survival of our future generations. We gladly assume our role as her guardians’, at http://viacampesina.org/en/index.php/main-issues-mainmenu-27/humanrights-mainmenu-40/peasants-right-resources/1743-joint-statement-2nd-session-of-theopen-ended-intergovernmental-working-group-on-a-un-declaration-on-the-rights-of-peasants (accessed 20 September 2015). In a similar way, during an informal consultation meeting on the peasant declaration, held in November 2014 at the United Nations Headquarters in Geneva, a representative of La Via Campesina explained that: ‘The goal for us is none other than guaranteeing the survival of the peasants and their lifestyles, with the social and cultural implications that this involves, and for benefit of the rest of society, the environment and taking care of the planet’ [sic]. See, La Via Campesina Leaders in Geneva to Support the Declaration on the Rights of Peasants (26 November 2014), at www.cetim.ch/la-via-campesina-leaderssupport-the-declaration-on-the-rights-of-peasants-in-geneva/ (accessed 20 September 2015). Advocates of peasants’ rights are also employing a similar strategy, highlighting, for example, how the world’s peasants may contribute to solve specific and complex challenges such as climate change. See, for one, ‘Peasants Are Part of the Solution for Climate Change’, Presentation by Eva Torremcha at the first session of the working group on the peasant declaration, at www.ohchr.org/Documents/HRBodies/HRCouncil/WGPleasants/EvaTorremocha.ppt” (accessed 20 September 2015).

93

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7 Conclusions

Today human rights represent a primary concern of the international legal system. The international community’s commitment to the protection and promotion of human rights, however, does not always produce the results hoped for by the advocates of a more justice-oriented system of international law. Indeed, international law is often criticised for, inter alia, its enduring imperial character, its incapacity to minimise inequalities and its failure to take human suffering seriously. Against this background, the question that this book has sought to answer is whether the adoption of an instrument such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration) points to the existence of an international law that is capable of providing valid responses to the demands for justice of disempowered and vulnerable groups. The discussions in the book have highlighted that the significance and implications of the UNDRIP vary depending on the perspectives from which they are assessed. From the perspective of indigenous peoples, the UNDRIP undoubtedly represents a historic achievement. As suggested by Chapters 2 and 3, it has not only fairly and adequately accommodated the human rights claims of indigenous peoples, but it has also real potential to make a tangible impact on the ground. This acquires even more significance considering that, through the UNDRIP, international law has turned from an instrument that once facilitated the dispossession and discrimination of indigenous peoples into one that seeks to effectively protect and promote their rights. Chapter 2 has underlined three important features of the legal framework of the Declaration. First, key provisions such as those on the right to self-determination, land rights and participatory rights respond to a significant extent to the needs and demands of at least the vast majority of indigenous peoples. Second, these provisions endorse strong and far-reaching rights and principles that break new ground in the area of ethno-cultural group rights. Third, in spite of their controversial character, these provisions are sufficiently clear and realistic to work in practice, as confirmed by recent judicial developments at both the international and national levels. These positive aspects of the Declaration’s legal framework provide a first important indication of the instrument’s potential to bring justice to indigenous

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Conclusions 143 peoples. However, the actual content of the Declaration would matter little if the instrument lacked real capacity to affect State behaviour. With this in mind, Chapter 3 has discounted the view that, as a soft law instrument, the UNDRIP cannot generate realistic expectations of conforming behaviour. On the contrary, the international consensus which surrounded its adoption, the solid legal background on which it was built and the broad participation of indigenous peoples in the remarkably long drafting process all contributed to enhancing the authoritativeness and legitimacy of the Declaration. As a result, the latter has come to be regarded as a highly influential legal instrument that articulates the comprehensive set of rights and principles applicable to indigenous peoples under international law. Not surprisingly, international and regional human rights bodies have regularly used the UNDRIP to inform, either directly or indirectly, their respective pronouncements on indigenous peoples. Contextually, several national courts have begun referring to specific provisions of the Declaration, particularly those concerning land rights and free, prior and informed consent (FPIC), in order to interpret domestic laws applicable to indigenous peoples. The above considerations can be taken to suggest that international law has provided a valid response to the demands for justice of indigenous peoples. Yet, this is not in itself sufficient to draw broader conclusions as to the transformative potential of international law. In particular, is there evidence to suggest that the emergence of indigenous peoples’ rights has translated or may translate into practical benefits for other groups similar to indigenous peoples? Chapter 4 has warned against an overly optimistic assessment of the significance and implications of the UNDRIP beyond the narrow confines of indigenous peoples, emphasising the fact that other groups have not been able to emulate the legal successes of indigenous peoples despite advancing similar claims and sharing important characteristics with them. For example, international law has not endorsed the claims of homeland minorities for self-determination and autonomy, even though these groups, like indigenous peoples, are culturally distinct from the rest of the relevant population, have a deep and historical attachment to their homelands, and often advance their claims with a view to remedying what they perceive as unjust distributions of sovereign powers and/or ending ongoing forms of domination and oppression. International law has also not done enough to protect and promote the rights of another ethno-cultural group that shares important characteristics with indigenous peoples, that is, the Roma. In the face of widespread discrimination and socio-economic deprivation, the Roma demand, like indigenous peoples, equal treatment and access to socio-economic resources as well as respect for their political and cultural rights, including the right to follow a particular way of life which is different from that of dominant societies. The lack of concrete efforts towards formulating targeted rights to deal with the specific forms of injustice suffered by the Roma and the choice of integration as the one solution to the human rights problems faced by this group mark a significant difference in the way in which international law has thus far responded to the claims of indigenous peoples,

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144 Conclusions on the one hand, and the Roma, on the other. Peasants, who are among the most discriminated and vulnerable people in many parts of the world, represent another group that is presently struggling for justice in international law. Crucially, they have important (cultural) similarities with indigenous peoples. In particular, both groups define their claims for collective land rights in cultural terms. The fact that a peasant declaration is currently being discussed at the UN level suggests that peasants’ requests are being taken seriously. However, early negotiations have already revealed the important obstacles that this group will face in its quest for justice. In particular, several States have expressed serious reservations about some of the central claims advanced by peasants, making the future of the declaration rather uncertain. Given these premises, will this declaration fairly and adequately respond to the demands and concerns of peasants, or will it mirror the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities in its failure to fully embrace the claims and aspirations of its beneficiaries? The fact that other groups have not been able or will find it particularly difficult to emulate the legal successes of indigenous peoples serves as a strong reminder of the inherent limits of international law as an instrument of justice. These limits are particularly apparent in respect of the process of international law creation, notably the process on which actors seeking the formal recognition of their human rights tend to rely. In spite of the growing involvement of non-State actors in the international legal system,1 States continue to ‘retain a tight grip’ on the formal process of international law-making.2 Thus, while other players such as civil society may be able to, inter alia, put issues on the table,3 it will ultimately be for States to decide on them. This reality has profound implications for groups that are struggling for the validation of challenging human rights claims. This is so because States are normally more reluctant to endorse human rights that pose a significant threat to their principal interests. This, of course, does not mean that human rights claims that collide with the primary political and economic interests of States will never be embraced. Yet, even the more progressive among international lawyers would accept that States are less likely to prioritise human rights issues when doing so may come at a significant political and/or economic cost. In this sense, it is not surprising that indigenous peoples had to battle for more than two decades before celebrating the adoption of a challenging instrument such

For a discussion, see R. McCorquodale, ‘Beyond State Sovereignty: The International Legal System and Non-State Participants’ (2006) 8 Revista Colombiana de Derecho International pp. 130–160. 2 A. Boyle and C. Chinkin, The Making of International Law (Oxford University Press 2007) p. 95. 3 See M. Iovane, ‘La Participation de la Societé Civile a l’Élaboration et à l’Application du Droit International de l’Environment’ (2008) 3 Revue Generale de Droit International Public pp. 465–520. 1

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Conclusions 145 as the UNDRIP. The negotiations on this instrument proved particularly difficult precisely because States had serious concerns about the political and economic implications of far-reaching provisions such as those on the right to self-determination, land rights and FPIC. In a similar way, States had and continue to have important concerns about the demands for justice of homeland minorities, fearing, for example, that the recognition of the right to self-determination to these minorities could fuel the secessionist aspirations of several groups around the world. The dynamics of the human rights struggles of the Roma and peasants further confirm that international law can hardly be expected to automatically validate particularly challenging human rights claims. Given these circumstances, it becomes important to understand how indigenous peoples succeeded in persuading States to endorse the radical set of rights and principles included in the UNDRIP. This book has suggested that a combination of factors may explain the legal achievements of indigenous peoples in international law. First, indigenous peoples enjoyed an unusually high level of political power, which had important consequences for their capacity to make their voice count at the international level. By analysing the features of the global coalition of indigenous peoples through a social movement lens, Chapter  5 has suggested that the sources of this political power are to be found in the coalition’s global dimension, its collective identity and its ability to skilfully exploit the opportunities for engagement provided by the international legal system. Numbers are one of the fundamental factors in determining the power and success of a movement. This is so because the more people mobilise and make common claims, the more States will be called into question and feel pressured to provide adequate responses. Accordingly, the fact that indigenous representatives sitting in UN rooms could speak on behalf of hundreds of millions of indigenous people affected both the force of their claims and the way in which the latter were perceived by States’ representatives. That said, numbers alone do not guarantee power and success. Indeed, as highlighted by scholars of social movements, the identification and preservation of a common identity is key to the effectiveness of a social movement. Crucially, indigenous peoples have been able to construe this shared identity and project it onto the international scene. Cultural values such as respect for nature and spiritual attachment to ancestral lands, shared experiences of dispossession and marginalisation, and common objectives such as demands for self-determination and land rights lie at the heart of the indigenous identity. Internally, this collective identity has helped the movement to speak with one voice and pursue common goals, most typically defined in international law terms. Externally, it has increased the movement’s political legitimacy by connecting the indigenous representatives operating at the international level and the members of the world’s indigenous communities who stand behind them. Indeed, it is precisely on the basis of a shared identity that the former can be regarded as legitimate representatives of the latter. Finally, commitment to the principle

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146 Conclusions of consensus-building and good diplomatic skills also contributed to the positive functioning of the indigenous movement. As discussed in Chapter 6, another factor that contributed to the positive outcome of the indigenous quest for justice relates to the moral dimension of indigenous peoples’ claims. Being profoundly linked with human suffering, the claims of indigenous peoples had a particularly strong moral force and thus resonated more powerfully than others at the international level. In this sense, it can be said that the degree of injustices perpetrated against indigenous peoples and the gravity of their present-day conditions affected the way in which States approached the demands of indigenous representatives, facilitating the positive recognition of indigenous rights in international law. Chapter 6 has highlighted another variable that should be added to the relevant equation. In the context of the increasing importance of the principle of sustainable development in international law and politics, the resonance of indigenous peoples’ claims was further amplified by the group’s commitment to environmental sustainability, which, in turn, derives from the special cultural relationship that indigenous peoples have with their lands. More specifically, by partially aligning their claims, particularly those related to land rights, with a major concern of the international community, that is, environmental protection, indigenous peoples increased the chances of a positive recognition of their rights as States felt almost compelled to embrace at least parts of their demands in order to remain loyal to their own environmental pledges. Taken together, the political power of the indigenous movement, the moral force of indigenous peoples’ claims and the fact that these claims were aligned with a paramount concern of the international community such as environmental sustainability have made the case of indigenous peoples rather unique, contributing to explaining why indigenous peoples, contrary to other groups, have succeeded in their struggle for justice. Accordingly, a mixed picture of the capacity of international law to respond to the demands of disempowered and vulnerable groups emerges from the above discussions. On the one hand, it is clear that, given the predominant position occupied by States in the process of international law-making and their tendency to defend their political and economic interests, any human rights struggle fought under the banner of international law will necessarily take place under non-ideal conditions. In particular, groups whose human rights claims pose a threat to the sovereign power and/or cultural structures of the affected States will face the difficult task of persuading the latter to endorse their demands notwithstanding their potential negative repercussions. On the other hand, the legal successes of indigenous peoples have revealed some of the avenues that actors seeking the legal validation of their human rights claims can exploit in order to achieve their goals. These include the opening of international law to the participation of non-State actors such as civil society and social movements, and the growing relevance of soft law in the international legal system. In an important sense, the very existence of these avenues and the fact that

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Conclusions 147 indigenous peoples have benefited from them warn against overly critical or pessimistic descriptions of the transformative potential of international law. Indeed, the dynamics and outcome of the indigenous peoples’ struggle for justice further, and encouragingly, suggest that human values and concerns can prevail over realpolitik in shaping the evolution of international law. At the same time, as circumstances and conditions change, so will the range of realistic possibilities. In particular, the action and identity of an actor, the perceived moral force of its claims and the level of political threat posed by the latter will contribute to define the dynamics and, in turn, determine the outcome of any particular human rights struggle. Similarly, as illustrated in Chapter 3, it is only under certain circumstances that soft law can become an important and effective instrument for protecting and promoting human rights. In light of the above, while the story of indigenous peoples’ rights is certainly a hopeful one for international law, the adoption of the UNDRIP has not signalled a paradigmatic shift in the way in which international law deals with the demands for justice of disempowered and vulnerable groups. Whether these groups will succeed in their quest for justice under the banner of international law will ultimately depend on the dynamics and circumstances of their own struggles. In this sense, international law can hardly be expected to consistently provide valid responses to these groups’ needs and aspirations. This, however, does not imply that it will never do so, as the case of indigenous peoples has clearly demonstrated.

Appendix

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Resolution 61/295 of the UN General Assembly

United Nations Declaration on the Rights of Indigenous Peoples The General Assembly, Taking note of the recommendation of the Human Rights Council contained in its resolution 1/2 of 29 June 2006, by which the Council adopted the text of the United Nations Declaration on the Rights of Indigenous Peoples, Recalling its resolution 61/178 of 20 December 2006, by which it decided to defer consideration of and action on the Declaration to allow time for further consultations thereon, and also decided to conclude its consideration before the end of the sixty-first session of the General Assembly, Adopts the United Nations Declaration on the Rights of Indigenous Peoples as contained in the annex to the present resolution. 107th plenary meeting 13 September 2007

Annex United Nations Declaration on the Rights of Indigenous Peoples The General Assembly, Guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed by States in accordance with the Charter, Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such, Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind, Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin

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Appendix 149 or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust, Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind, Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests, Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources, Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States, Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppression wherever they occur, Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs, Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment, Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world, Recognizing in particular the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child, Considering that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in some situations, matters of international concern, interest, responsibility and character, Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States, Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights as well as the Vienna Declaration and Programme of Action affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine

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150 Appendix their political status and freely pursue their economic, social and cultural development, Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law, Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith, Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned, Emphasizing that the United Nations has an important and continuing role to play in promoting and protecting the rights of indigenous peoples, Believing that this Declaration is a further important step forward for the recognition, promotion and protection of the rights and freedoms of indigenous peoples and in the development of relevant activities of the United Nations system in this field, Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples, Recognizing that the situation of indigenous peoples varies from region to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration, Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous Peoples as a standard of achievement to be pursued in a spirit of partnership and mutual respect:

Article 1 Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.

Article 2 Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.

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Article 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

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Article 4 Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 5 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 6 Every indigenous individual has the right to a nationality.

Article 7 1. Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person. 2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

Article 8 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. 2. States shall provide effective mechanisms for prevention of, and redress for: a. Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; b. Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

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c. Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; d. Any form of forced assimilation or integration; e. Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 9 Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

Article 10 Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 11 1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12 1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains. 2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

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Article 13 1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons. 2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.

Article 14 1. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning. 2. Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination. 3. States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.

Article 15 1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information. 2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.

Article 16 1. Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination. 2. States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity. States, without prejudice to ensuring full freedom of expression, should encourage privately owned media to adequately reflect indigenous cultural diversity.

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Article 17 1. Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable international and domestic labour law. 2. States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment. 3. Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour and, inter alia, employment or salary.

Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 20 1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities. 2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.

Article 21 1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.

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2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.

Article 22 1. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration. 2. States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

Article 23 Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.

Article 24 1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services. 2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.

Article 25 Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

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Article 26 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. 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. 3. 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.

Article 27 States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 29 1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination.

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2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent. 3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.

Article 30 1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. 2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.

Article 31 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

158 Appendix 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

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Article 33 1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live. 2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

Article 34 Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

Article 35 Indigenous peoples have the right to determine the responsibilities of individuals to their communities.

Article 36 1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders. 2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.

Article 37 1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.

Appendix 159 2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

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Article 38 States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

Article 39 Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration.

Article 40 Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

Article 41 The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues affecting them shall be established.

Article 42 The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

Article 43 The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.

160 Appendix

Article 44 All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.

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Article 45 Nothing in this Declaration may be construed as diminishing or extinguishing the rights indigenous peoples have now or may acquire in the future.

Article 46 1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. 2. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society. 3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

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Index

access to justice 16, 41 adequate and fair recognition of rights 21, 32, 42, 72, 87–8, 120, 142–4 adoption of UNDRIP 1–3 Africa: African Charter on Human and Peoples’ Rights 64; African Commission on Human and Peoples’ Rights 32, 39, 64 104–5, 121–2; African Court on Human and People’s Rights 64; identity 105; political power 100 Agama, Hasmy 108 Ainu (Japan) 100 Alfredsson, Gudmundur 113 Americas: Inter-American Charter of Social Guarantees 1948 122–3; Inter-American Commission on Human Rights 121; Inter-American Convention on Human Rights 33–4, 64; Inter-American Court of Human Rights (IAtCHR) 33–5, 60, 63–4, 67–8, 103, 121–2; International NGO Conferences on Discrimination against Indigenous Populations in the Americas 99; political power 99–100; United States 46, 50 see also Canada Amnesty International 107 Anaya, James 38 ancestral lands, ownership and control of see lands, ownership and control of ancestral Anderson, Kenneth 107 anti-globalisation 104 Arctic Peoples Conference 99 Asia 6, 99–100, 115 assimilation 1, 17–18, 19; collective rights 21; cultural identity 124; equality and non-discrimination 16;

human rights 123–4, 130; integration 82–3, 90; Roma 79–80, 82–3, 90 asylum seekers 73 Australia: assimilation 123; Australian Human Rights and Equal Opportunity Commission 123; forced removal of indigenous and mixed children from families 123; Genocide Convention 123; legal status of UNDRIP 48; non-binding, UNDRIP as 45–6; opposition 50 autonomy: homeland minorities 71, 73, 75–7, 89–90, 93; Roma 80, 82; self-determination 25–6; threats to States 77 Ban Ki-moon 138 Banjul Charter (African Charter on Human and Peoples’ Rights) 64 Barsh, Russel Lawrence 128 Belize, Mayan community in 65–6 best practices 57–8 binding nature of UNDRIP 8, 45–6, 67 biodiversity 53, 88, 136–8 Bison, Ivan97 Bolivia, consultative rights in 65 Boyle, Alan 52 Brundtland Commission 121, 135–6 Brysk, Alison 102 Canada: assimilation 123; Canadian Inuit 99; courts, role of 66–7; cultural genocide 124; forced removal of children from families 123–4; New Zealand 103; non-binding, UNDRP as 45–6; opposition 50; self-government 127; Truth and Reconciliation Commission 123–4

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176  Index Capotorti, Francesco 72 Carpenter, Kristen 15 Cassese, Antonio 125 children 18–19, 62, 82, 123, 129 see also education Chin (Burma) 100 Chinkin, Christine 52 Chittagong Hill Tracts, indigenous representatives from 99 civil and political rights 2, 21–2, 41, 94; economic, social and cultural rights 14, 20; Human Rights Committee (HRC) (ICCPR) 32, 39, 57–8, 85, 115–16; peasants 86 civil society 96–7, 105–6, 108, 116–17, 144 Cobo, Martinez 6–7 collective rights 13, 17–18, 21; assimilation 17–18; equality and non-discrimination 18; ethno-cultural groups 17; homeland minorities 75; identity 96, 98, 101, 105, 109–10, 115, 117–18, 145; lands, ownership and control of ancestral 17, 33; peasants 72, 84, 86–8, 144 Colombia 46 colonialism 1, 4, 20, 125–9; annexation 125; conquest 125–6; decolonisation 21, 23, 127–8; indigenous peoples, definition of 6; occupation 125–6; terra nullius 125–6 Commission on Human Rights 48–50 Committee on Economic, Social and Cultural Rights (CESCR) 32, 39, 62 Committee on the Elimination of Racial Discrimination (CERD) 32, 61–2 Committee on the Rights of the Child (CRC) 62 common values and interests 102–5, 114, 145 communal property 63 compliance with UNDRIP 20–1, 46–63, 143 Confederation of the Six Nations 127 consensus-building 47, 49, 112, 118, 143, 146 consent see free, prior and informed consent (FPIC) consultative rights 35–9, 58, 64–5 Convention on the Rights of the Child 1989 62 Cordillera Peoples Alliance (Philippines) 100

Council of Europe: European Charter on Roma Rights (ERTF) 80; Partnership Agreement with ERTF 79–80 country visits 57 courts, role of regional and national 63–7; environmental dimension 133; free, prior and informed consent (FPIC) 143; human rights treaty bodies 60; interpretation 63, 66, 67, 143 see also individual courts culture 1, 13, 16, 41; diversity 19, 80, 83, 124, 131; education 19–20; environmental dimension 119, 134, 136, 138; ethno-cultural groups 2, 8, 13, 17, 71, 105, 142–3; free, prior and informed consent (FPIC) 39–40; homeland minorities 73, 75, 89, 143; human rights 1, 119, 124, 126, 130–2; identity 64, 101–2, 103–5, 124, 131; intellectual property 19; judicial decisions 21; lands, ownership and control of ancestral 2, 15, 29, 34, 38, 103, 145; objects, exploitation of 18–19; peasants 62, 84, 86–7, 144; religion 18–19; Roma 71, 80, 82–3, 90, 94, 143; secession 28; self-determination 22, 26; territorial dimension 94, 126; traditional knowledge 18–19 customs 19, 21, 26, 30, 34, 44, 87, 133 de Las Casas, Bartomolè 122 Decade for Action to Combat Racism and Racial Discrimination (1973–1982) 99 Declaration of the Rights of Peasants - Women and Men. La Via Campesina 85–6, 115–16 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN) 74, 93, 144 declarations: decolonisation 128; homeland minorities 74–6; peasants 85–9, 90, 115–16, 144; self-determination 22–3 definition of indigenous peoples 5–7 deforestation 132 delay in intervention 124, 128–9, 144–5 Della Porta, Donatella 101–2 Denmark 127 Deskaheh, Levi General 127

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Index  177 development see economic and industrial development Diani, Mario 97, 101–2 dignity 1–3, 19, 41, 87, 115, 129 diplomacy 9, 113–14, 118, 119, 146 discrimination see equality and non-discrimination dispossession of lands 1, 4–5, 13, 142, 145; human rights 125–6, 128–9; peasants 87; political power 117–18; restitution 31, 33; tenure, traditional forms of 30 dispute resolution processes 31 see also courts, role of regional and national domination 14, 20, 71, 73, 89, 143 drafting of UNDRIP 8–9; General Assembly 48–9; human rights 119, 140; legal status of UNDRIP 47–52, 143; negotiations 15, 47–52, 95, 112, 117, 133, 145; NGOs, consultative status of 51; participation of indigenous peoples 9; political power 111–12; self-determination 24–5 economic and industrial development 16–20, 41; environmental dimension 132–5, 138; free, prior and informed consent (FPIC) 38–40, 59; human rights 121; threats to States 16; UN Development Group 59 Economic and Social Council (ECOSOC) 51, 56 economic, cultural and social rights 14, 20, 22, 41, 94, 131; civil and political rights, privileging 14, 20; Committee on Economic, Social and Cultural Rights (CESCR) 32, 39, 62; homeland minorities 75; peasants 86; Roma 80; self-determination 22–3, 38, 94 Ecuador 64–5 education 16, 19–20, 41, 56, 122–3; cultural rights 19–20; forced removals 123; languages 19; peasants 86; Roma 79, 80, 82 effectiveness: institutional setting 55; legal content of UNDRIP 15–16, 21, 40–2; legal status of UNDRIP 67–8; remedy, right to an effective 21 Eide, Asbjørn 51, 72–3 elites 109–11 employment 79, 82

environmental dimension and sustainable development 132–41; biodiversity 53, 88, 136–8; Brundtland Commission 121, 135–6; culture 119, 134, 136, 138, 146; economic and industrial development 132–5, 138; European Union 137–8; free, prior and informed consent (FPIC) 139–40; globalisation 134; human rights 119–20, 132–41, 146; ICJ, jurisprudence of 133; identity 134, 136; international instruments 133; international law 141; Johannesburg Declaration 2002 136–7; lands, ownership and control of ancestral 9, 31, 133, 139, 146; living conditions 135; natural resources 133, 141; participation 136; peasants 86, 116, 141; Rio Declaration 136; romanticisation 134; self-determination 139; spirituality 9, 133, 135, 138–9; States’ interests 132–3; stewardship/guardianship 134–5; threats to States 132–3; traditional knowledge and practices 136–8; treaty law 133; United Nations 137–8; World Summit Outcome 137 equality and non-discrimination 1–2, 6, 16–18, 24; assimilation 16; collective rights 18; food, right to 85; free, prior and informed consent (FPIC) 40; human rights 17, 119; identity 105; peasants 72, 84–5; Preamble to UNDRIP 16–17; racial discrimination 32, 55, 61–2, 78, 80, 99; Roma 71, 78–80, 90, 143; secession 28; self-determination 24 European Charter on Roma Rights (ERTF) 80 European Convention on Human Rights (ECHR): European Court of Human Rights 64–5; lands, ownership and control of ancestral 64–5; living instrument, as 60 European Roma and Travellers Forum (ERTF) 79–80 European Union 81, 88, 137–8 existing/emerging law, relationship between UNDRIP 52–5

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Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) 57–8 experts 57–8, 107, 111–12 Farget, Doris 82 First International Decade of the World’s Indigenous People (1995–2004) 49, 51 follow-up mechanisms 47, 55, 57 food 79, 84–5, 116 forced assimilation see assimilation forcible removal 18, 31–2, 123, 129 Food and Agriculture Organization (FAO) Policy on Indigenous and Tribal Peoples 2010 FPIC see free, prior and informed consent (FPIC) free, prior and informed consent (FPIC) 2, 35–40; constructive approach 37–40; ‘consult in order to obtain’, meaning of 36–8; courts, role of 143; culture 39–40; development projects, consultation on 38–40, 59; environmental dimension 139–40; equality and non-discrimination 40; express recognition 35; homeland minorities 75; human rights 39, 132; international financial institutions 58–9; interpretation 36; lands, ownership and control of ancestral 14, 36, 37–8, 42, 94, 143; participation 14; peasants 86; self-determination 26, 38; sliding-scale approach 38–9; threat to States 145; transformative, as 35–6; veto, power of 36, 38, 94 future generations 6, 19, 29–30 gender discrimination 84 General Assembly (UN): drafting 48–9; resolutions 8, 43–6; Special Committee on Decolonization 127–8 genocide 19, 129–30; cultural genocide 130; forced removal of children 129; Genocide Convention 123; international law 129–30; Roma 80 global indigenous movement see political power of global indigenous movement global warming 132 globalisation 98, 104, 134 good faith 2, 20, 30, 33

gravity and urgency of indigenous peoples’ situation 119, 120–32, 140, 146 Greenland 127 Guyana 46 hate speech in social media 78 health 56, 79, 86 Henriksen, John 57–8 historical connections: context 4; culture 18; future generations 19; homeland minorities 71, 89; human rights 119–20, 122, 128, 137, 140, 142–3; identity 101, 103–4; indigenous peoples, definition of 6–7; lands, ownership and control of ancestral 30–1, 71, 142–3; Roma 78, 80, 83, 90 homeland minorities 8–9, 71, 72–8, 93–4; asylum seekers 73; autonomy 71, 73, 75–7, 89–90, 93; collective rights 75; culture 73, 75, 89, 143; declarations 74–6; domination 71, 73, 89, 143; ethno-cultural group, as 71; free, prior and informed consent (FPIC) 75; historical connections 71, 89; identity 71, 113; independence 73, 76; language 73, 75; limited recognition 74–8; migrants 73; Minority Declaration (UN) 74–8, 89, 90, 93; minority, definition of 72; nationality 72; new minorities 72–3; old minorities 72–3; oppression 71, 73, 89, 143; participation 73, 75, 77, 113, 115; political rights 75–6; power, unjust distributions of 73, 89–90, 143; recognition 74–8; religion 72–5; secession 76, 77, 93, 145; self-determination 71, 73, 75–6, 89, 93; territorial dimension 73–4; threats to States 76–7, 145; treaties 74 housing 79, 82, 86 human rights 1–4, 9, 13, 51, 119–41; assimilation 123–4, 130; colonialism 125–9; context 140; courts, role of 63–7; culture 1, 119, 124, 126, 130–2; delay in intervention 124, 128–9, 144–5; drafting UNDRIP 119, 140; economic and industrial development, threats from 121; economic, social and cultural development, right to 131; environmental dimension

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Index  179 119–20, 132–41, 146; equality and non-discrimination 17, 122; free, prior and informed consent (FPIC) 132; genocide 129–30; gravity and urgency of indigenous peoples’ situation 119, 120–32, 140, 146; historical wrongs 122, 140; homeland minorities 74; identity 131; indivisibility 40–1; international law 124–9, 140, 142, 146; lands, ownership and control of ancestral 131–2; language 130; marginalisation and exploitation 122; moral force of claims 9, 119, 124, 128, 146; peasants 85–9, 90, 115, 117, 141, 145; religion 130; Roma 81, 83, 145; self-determination 26, 131–2; survival of indigenous peoples 120–2, 129–31; threats to States 118, 144, 146–7; traditional lifestyles 121; Western concepts 3–4, 48 see also civil and political rights; economic, cultural and social rights ; European Convention on Human Rights (ECHR) ; human rights treaty bodies Human Rights Commission (UN) 52 Human Rights Committee (HRC) (ICCPR) 32, 39, 57–8, 85, 115–16 Human Rights Council (UN) 48, 57–8, 85–9, 90, 115–16, 144 human rights treaty bodies: evolving instruments, human rights instruments as 60; indigenous peoples, definition of 7; institutional setting 60–3; interpretation 60–2, 67, 143; lands, ownership and control of ancestral 42; legal status of UNDRIP 55, 67, 143; monitoring of compliance with UNDRIP 60–1; promotion of compliance with UNDRIP 60; regional human rights bodies 7, 42, 60; soft law 61; sui generis category of human rights, sustainability of 7 see also individual bodies hunger 84 identity 101–11; anti-globalisation 104; civil society 105–6; collective identity 96, 98, 101, 105, 109–10, 115, 117–18, 145; common values and interests 102–5, 145; construction 101–2, 103–4; culture 64, 101–2, 103–5, 124, 131;

environmental dimension 134, 136; historical connections 101, 103–4; homeland minorities 71, 113; human rights 131; lands, ownership and control of ancestral 103–5, 145; leaders as elites 109–11; localism 101–2; marginalization 103; non-governmental organizations (NGOs) 106–8; oppression 103–4; participation 105–6; peasants 113, 116–17; political legitimacy 105–11, 145; political power 96, 101–11, 117–18, 145; religion 105; Roma 113–14; rooted cosmopolitanism 110; self-determination 104, 145; social movements 145; values 102–5, 145 implementation of UNDRIP 5, 19–21, 24–5 independence 21–2, 73, 76, 93–4 indigenous identity see identity indigenous peoples, definition of 5–7, 9 industrial development see economic and industrial development institutional setting 47, 55–63 intellectual property 16, 19, 41 Inter-American Charter of Social Guarantees 1948 122–3 Inter-American Commission on Human Rights 121 Inter-American Convention on Human Rights 33–4, 64 Inter-American Court of Human Rights (IAtCHR) 33–5, 60, 63–4, 67–8, 103, 121–2 intergovernmental organisations 21 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 55 61 International Court of Justice (ICJ) 133 International Covenant on Civil and Political Rights (ICCPR) 21–2, 94 see also Human Rights Committee (HRC) (ICCPR) International Covenant on Economic, Social and Cultural Rights (ICESCR) 22, 62, 94 International Financial Corporation (IFC) Performance Standard 59 international financial institutions (IFIs) 58–9

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180  Index International Fund for Agricultural Development (IFAD) 59 international institutional setting see institutional setting International Labour Organization (ILO) conventions: human rights 124; No 107 82, 124; No 169 23, 30, 83, 124; Roma 82–3 international law 1–5; civil society 106, 117; colonialism 4, 142; creation 144; environmental dimension 141; equality and non-discrimination 142; homeland minorities 73–4; human rights 124–9, 140, 142, 146; legitimacy 52; participation 112; peasants 89, 115, 144; political power 111–12, 117–18; Roma 77, 79, 83, 90; scepticism 8; soft law 147–8; sources of international law 8, 43–4; standards 5; transformative potential 4–5, 13, 143, 147 International NGO Conferences on Discrimination against Indigenous Populations in the Americas 99 interpretation 8, 20–1; consultative rights 35–6; courts, role of 63, 66, 67, 143; dynamic interpretation 60–1; free, prior and informed consent (FPIC) 36; human rights treaty bodies 60–2, 67, 143; lands, ownership and control of ancestral 31, 143; soft law 61 Johannesburg Declaration 2002 136–7 Karen (Thailand) 100 Kingsbury, Benedict 102 Koutouki, Konstantia 82 Kymlicka, Will 73 La Via Campesina 85–6, 115–16 lands, ownership and control of ancestral 2, 8, 15–17, 29–35, 41–2, 142; access to land 84, 139; collective rights 33; compensation 31, 34, 87; competing interests 34; courts, roles of 64–5; culture 2, 15, 29, 34, 38, 103, 145; custom 34, 87; dispossession 1, 4–5; dispute resolution processes 31; drafting 30; environmental dimension 9, 31, 133, 139; evictions 87; evidence of title 33–4; forcible removal 31–2; free, prior and informed consent

(FPIC) 36, 37–8, 42, 94, 132, 143; future generations, held in trust for 29–30; historical connections 30–1, 71, 142–3; human rights 32, 42, 131–2; identity 103; interpretation 31, 143; legal content of UNDRIP 15–17, 29–35, 41–2; legitimacy 33, 125–6; natural resources, use of 34, 94, 103, 131, 133, 139; opposition 48; peasants 84, 87–8, 90, 144; political power 117–18; public interest 31; realising land rights 32–5; recognition of rights 15, 29–31, 33; restitution 31, 33–4, 87; retrospectivity 30–1; self-determination 26; special relationship with territories 33–4, 37–8, 42, 94; spirituality 9, 30, 33–4, 84, 103–4, 117, 145; subsistence 29; tenure systems, recognition of land 30; threats to States 145 language 18–20; cultural rights 18; declarations 22–3; education 19; homeland minorities 73, 75; human rights 130; media 20; Roma 80, 82 leaders as elites 109–11 League of Nations 74, 127 legal content of UNDRIP 8, 13–42, 47, 142–3 legal status of UNDRIP 43–68; aspirational, UNDRIP as 45–6, 67; compliance, potential to generate State 46–63; context 47, 143; courts, role of 63–7, 143; customary international law 44; drafting history 47–52, 143; effectiveness of UNDRIP 67–8; existing/emerging law, relationship between UNDRIP 52–5; General Assembly resolution 8, 43–6; human rights treaty bodies 67, 143; institutional setting 47, 55–63; lands, ownership and control of ancestral 48; legitimacy 47, 143; non-binding, UNDRIP as 45–6; opposition 48, 50; persuasive, as 44; self-determination 48; soft law 8, 43–7, 67–8, 143 legitimacy 45, 67, 143; human rights treaty bodies 55–6; international law 52; lands, ownership and control of ancestral 33, 125–6; legal status of UNDRIP 47, 143; participation 52; political 105–11, 115, 117, 145; statehood claims 29 liberty, right to 86

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life, right to 86 lifestyles 53, 119, 121, 134–7, 141 limitations of UNDRP 14–16, 46, 65 living conditions 82–3, 129, 135 lobbying 1, 106, 113, 116, 127 localism 101–2 mainstreaming rights 57 Manuel, George 103 Maoris’ right to natural resources 66 marginalisation 41, 117–18, 145; human rights 122; identity 103; socio-economic conditions 71, 78–9, 90, 143 Martínez Cobo, José 120–1 Martínez, Miguel Alfonso 128 Masai (Kenya) 100 Mayan community in Belize 65–6 media 20, 80 migrants 73 minorities see homeland minorities Minority Declaration (UN) 74–8, 89, 90, 93 model for other groups see homeland minorities peasants ; Roma monitoring of compliance with UNDRIP 20–1, 55, 57, 60–1 moral force of claims 9, 119, 124, 128, 146 Morgan, Rhiannon 97 Naga (India) 100 Nash, Kate 107 national courts see courts, role of regional and national Nation-State, Western model of the 126–7 National Indian Brotherhood of Canada 99, 103 nationality 22–3, 72 natural resources 16, 36, 41, 66; environmental dimension 133, 141; free, prior and informed consent (FPIC) 36; human rights 131; lands, ownership and control of ancestral 34, 94, 133, 139; mineral resources 36; peasants 86–8; political power 117; threats to States 117 negotiation of UNDRIP 15, 47–52, 95, 112, 117, 133, 145 Ndahinda, Felix 105 New Zealand: Canada 103; Maoris’ right to natural resources 66;

non-binding, UNDRP as 46; opposition 50 Niezen, Ronald 103–4, 109 Nigeria 100 non-discrimination see equality and non-discrimination non-governmental organisations (NGOs): consultative status 51; experts 107; identity 106–8; International NGO Conferences on Discrimination against Indigenous Populations in the Americas 99; members, relationship with 107–8; political legitimacy 107–8 Norway 46, 99, 127 Nowak, Manfred 61 Office of the High Commissioner for Human Rights (OHCHR) 57, 62–3 Ogoni (Nigeria) 100 opposition to indigenous claims 15, 48, 50 oppression 1–2, 4–5, 20, 41; homeland minorities 71, 73, 89, 143; identity 103–4; political power 113; secession 27, 29; self-determination 48 Organization of American States (OAS) 96–7 ownership of land see lands, ownership and control of ancestral participation and participatory rights 8, 14–16, 35–42, 142; civil society 96–7, 144; consultative rights 35–6; decision-making 77; drafting of UNDRIP 9, 52; environmental dimension 136; homeland minorities 73, 75, 77, 113, 115; identity 105–6; indigenous organisations 51–2, 143; international law 112; legal content of UNDRIP 14, 15–16, 35–40, 41–2; legitimacy 52; lobbying 106; model for other groups, as 113–17; peasants 86, 113, 115; political power 96–8, 113–17, 144; Roma 79, 113, 114–15; self-determination 26, 35; State paradigm 96; States’ interests 16 see also free, prior and informed consent (FPIC) peasants 8–9, 71–2, 83–9; civil and political rights 86; civil society 116; collective rights 72, 84, 86–8, 144; cultural rights 72, 84, 86–7,

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182  Index 144; customary land tenure rights 87; Declaration of the Rights of Peasants - Women and Men 115–16; declarations 85–9, 90, 115–16, 144; definition 83–4; dignity 115; economic and social rights 86; education 86; environmental dimension 86, 116, 141; equality and non-discrimination 72, 84–5; evictions 87; family and household labour, reliance on 83–4; food, right to 84–5, 116; free, prior and informed consent (FPIC) 86; health 86; housing, right to 86; human rights 85–9, 90, 115, 117, 141, 145; Human Rights Council (HRC) draft declaration 85–9, 90, 115–16, 144; identity 113, 116–17; international law 89, 115, 144; lands, ownership and control of ancestral 84, 87–8, 90, 144; landless people 83–4; natural resources 86–8; participation 86, 113, 115; productive resources, right to 88; restitution 87; rural areas 83–4, 116; seed, right to 88; socio-economic conditions 83–4, 88; standard of living 85, 87; subsistence farming and smallholdings 83–4, 115–16; traditional fishing, hunting and herding activities 84, 86 Permanent Court of International Justice (PCIJ) 74, 127 Permanent Forum on Indigenous Issues (UN) 56 persuasive, UNDRIP as 44 political legitimacy 105–11, 115, 117, 145 political power of global indigenous movement 1, 93–118; consensus-building 112, 118, 146; diplomacy 9, 113–14, 118, 119, 146; drafting 111–12; geographical dimension 100–1; global dimension 98–101, 145; identity 96, 101–11, 117–18, 145; international law 111–12, 117–18; lands, ownership and control of ancestral 117–18; natural resources 117; networks 98–100; one voice, speaking with 111–13; oppression 113; participants of international law 96–8, 144; participation 113–17; representative, whether indigenous bodies are 108–9, 145; representatives 111–12, 117,

145; self-determination 118; social movement framework 9, 96–8, 101, 145; threats to States 93–4, 117–18 political rights see civil and political rights power see political power of global indigenous movement practice, rights in 16 Preamble of UNDRIP 16–17, 26, 28, 129 progressive instrument, UNDRIP as 4–5, 15, 21, 41–2, 67, 71, 89, 131 promotion of UNDRIP 16, 98, 129, 142; legal content of UNDRIP 13, 20–1, 40; legal status of UNDRIP 44–5, 51–2, 55–64, 66, 68 racial discrimination 32, 55, 61–2, 78, 80, 99 regional courts see courts, role of regional and national religion 16, 18, 41; culture 18–19; declarations 22–3; homeland minorities 72–5; human rights 130; identity 105; suppression 18 representatives: experts 111–12; political power 111–12, 117, 145; whether indigenous bodies are representative 108–9, 145 Riley, Angela 15 Rio Declaration 136 Roma 8–9, 78–83, 94; assimilation 79–80, 82–3, 90; autonomy 80, 82; caravan sites, access to 82; Council of Europe 79–80; cultural rights 71, 80, 82–3, 90, 94, 143; economic and social rights 80; education 79, 80, 82; employment 79; equality and non-discrimination 71, 78–80, 90, 143; ethno-cultural group, as 71; European Charter on Roma Rights (ERTF) 80; European Commission 81; expulsions and exclusions 80–1; food and water 79; genocide 80; hate speech in social media 78; health care 79; housing 79, 82; human rights 81, 83, 145; identity 113–14; integration 81–3, 90, 143–4; international law 77, 79, 83, 90; language 80, 82; living conditions 82–3; media 80; nomadism 80, 82; organisations 114–15; participation 79, 113, 114–15; persecution 80; political rights 71,

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Index  183 79, 143; racism 78, 80; secession 82; self-determination 80; slavery 80; socio-economic marginalisation 71, 78–9, 90, 143; stereotyping 78; threats to States 82, 94; violence 80; working conditions 82 rooted cosmopolitanism 110 Russia, small numbered peoples from 100 Saami of Finland, Norway and Sweden 64–5, 99 San Jose Declaration of UNESCO 1981 130 San (Southern Africa) 100 secession 23, 27–9, 76, 77, 82, 93, 145 Second International Decade of the World’s Indigenous People (2005–2014) 49–50 self-determination 2, 8, 13–16, 21–9, 35, 41–2, 142; autonomy 25–6; continuing nature 21–2; cultural rights 22, 26; decolonisation 21, 23; definition 14; drafting 24–5; economic, social and cultural rights 22–3, 38, 94; environmental dimension 139; equality and non-discrimination 24; external aspects 22, 27–9; free, prior and informed consent (FPIC) 26, 38, 132; homeland minorities 71, 73, 75–6, 89, 93; human rights 26, 131–2; identity 104, 145; implementation 24–5; independence 21–2, 93–4; institutions, political, legal, economic, social and cultural 26; internal aspects 22, 24–5, 27; lands, ownership and control of ancestral 26; language 22; legal implications 42; legal content of UNDRIP 8, 13–16, 21–9, 35, 38, 41–2, 142; legal status of UNDRIP 48; opposition 48; participation 26, 35; peoples, indigenous people as 23–4; political power 118; political self-determination 22–3, 42; religion 23; Roma 80; secessionism 23, 27–9; self-government 25; spirituality 26; sub-national groups 22, 27; territorial integrity 24–5, 27–9; threats from States 145 slavery 80 social media 78 social movement framework 9, 96–8, 101, 145

socio-economic conditions 1, 9, 20; marginalisation 71, 78–9, 90, 143; peasants 83–4, 88; Roma 71 soft law 8, 147–8; hard law 46–7, 55; human rights treaty bodies 61; interpretation 61; legal status of UNDRIP 8, 43–7, 67–8, 143; non-binding, as 45–6, 67 sources of international law 8, 43–4 Soviet Union, dissolution of 74, 77 Special Rapporteurs (UN): discrimination and protection of minorities 72, 120–1, 128; human rights of indigenous peoples 38, 56–8, 112–13; minority issues 79, 82; peasants 88; torture and other cruel, inhuman or degrading treatment or punishment 61 specialised agencies see UN bodies and specialised agencies spirituality: environmental dimension 9, 133, 135, 138–9; indigenous peoples, definition of 7, 9; lands, ownership and control of ancestral 30, 33–4, 84, 103–4, 117–18, 145; self-determination 26 standard of living 85, 87 status of UNDRIP see legal status of UNDRIP Stavenhagen, Rodolfo 112–13 stereotyping 78 Study of the Problem of Discrimination Against Indigenous Populations. Martínez Cobo, José 6 Sub-Commission on the Promotion and Protection of Human Rights 47, 49 subsistence 29 support for UNDRIP 49–50 Suriname 64 survival of indigenous peoples 1, 15, 19, 34, 41, 103, 120–2, 129–31 sustainable development see environmental dimension and sustainable development Sweden, Saami of 64–5, 99 Taiakake, Alfred 101 Tarrow, Sidney 110 tenure systems, recognition of land 30 territorial dimension: cultural rights 94; homeland minorities 73–4; political power 100–1; self-determination 24–5, 27–9; terra nullius 125–6

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184  Index threats to States/States’ interests: autonomy 77; economic and industrial development 16; environmental dimension 132–3; free, prior and informed consent (FPIC) 145; homeland minorities 76–7, 145; human rights 118, 144, 146–7; lands, ownership and control of ancestral 145; Minority Declaration 89, 93; natural resources 117; participation 16; political and economic interests 41, 48, 94, 117–18; political power 93–4, 117–18; Roma 82, 94; self-determination 145 Tilly, Charles 101 traditional knowledge and practices: culture 18–19; environmental dimension 136–8; human rights 121; hunter-gatherer communities 7; indigenous peoples, definition of 7; intellectual property 19; peasants 83–4, 86, 115–16; pre-invasion communities 6–7; subsistence farming and smallholdings 83–4, 115–16; traditional fishing, hunting and herding activities 84, 86; tribal groups 7 treaties and conventions 74, 133 tribal groups 7, 23 Trindade, Cançado 3 Turkey 46 Twa (Rwanda) 100 UN bodies and specialised agencies 56–60; communication 56–7; compliance 20–1, 56–7; country visits 57; follow-up activities 57; monitoring 57; politicisation 56 see also particular bodies UN Centre for Human Rights 51 UN Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP), text of 148–60 United Kingdom 46 United Nations (UN): Charter 17; decolonisation 127–8; documents, mention of UNDRIP in major UN 49–50; human rights 127–8; Minority Declaration (UN) 74–8, 89, 90, 93;

Office of the High Commissioner for Human Rights (OHCHR) 57, 62–3; peasants 72; political power 98; World Summit Outcome 137 see also Special Rapporteurs (UN); UN bodies and specialised agencies United States 46, 50 Universal Declaration of Human Rights (UDHR) 17 urgency of indigenous peoples’ situation 119, 120–32, 140, 146 values 26, 117–18, 134, 140, 148; common values 102–5, 114, 145; culture 131; identity 102–5, 145 van Boven, Theo 51 veto, power of 36, 38, 94 Vienna Declaration and Programme of Action 27–8 violence 18–19; culture 18; homeland minorities 77–8; human rights 122, 129; lands, ownership and control of ancestral 34; Roma 80 see also genocide water 36, 66, 79, 86–7, 89 working conditions 82 Working Group on Indigenous Populations (WGIP) (UN) 47, 49–52, 99–100, 137 World Bank Operational Policy 58–9 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance 2001 50 World Conference on Human Rights 49–50 World Conferences on Indigenous People 50, 99 World Council of Indigenous Peoples 99, 103 World Food Programme 84 World Summit 2005 50 World Summit Outcome 137 Xanthaki, Alexandra 52 Yugoslavia, dissolution of 74, 77