Indigenous Rights in International Law
Summary and Keywords
Indigenous rights have been gaining traction in international law since World War II, as the indigenous peoples, previously classified under the scope of domestic law, have propelled their cause into the global arena. Indigenous societies are vastly heterogeneous, but they possess some common features, such as lack of statehood, economic and political marginalization, and cultural and racial discrimination. Scholars generally agree that one of the most important goals of the international indigenous movement is to advance indigenous rights under international law. Hence, there have since been several international institutions that seek to address indigenous rights. The Universal Declaration of Human Rights (UDHR) in 1948 is the first international document that recognizes the need to protect indigenous groups, though there are also actors and organizations specializing in the field, such as the Working Group on Indigenous Populations (WGIP). However, the majority of the indigenous rights scholarship only examines the policy on indigenous rights, rather than the broader contexts of indigenous rights or the rise of indigenous rights as a phenomenon. Therefore, if the ultimate political goal of the indigenous rights scholarship is to better the conditions of indigenous peoples, the study of the efficacy of international legal prescription of indigenous rights is imperative. Otherwise, the considerable efforts put forth by both the academic community and the international indigenous movement could only remain symbolic.
Keywords: indigenous rights, indigenous peoples, indigenous societies, international indigenous movement, indigenous rights under international law, indigenous rights scholarship, indigenous rights policies
Despite the lack of an agreed concept of indigenous rights, there has been a surge in the study of indigenous rights in international law that began after World War II and has continued to prosper since the 1970s (Oliveira 2009). This field has contributed to a greater understanding of the struggles indigenous people worldwide have faced and are still facing. The following essay will survey the existing scholarly literature in the field published in English and provide an overview on a number of common threads that shed light on the policy development of indigenous rights in contemporary international law. In general, the legal and policy processes required to replace dispossession and marginalization are now evident, and are in various stages of negotiation or implementation. The concept of “indigenous rights” is gaining currency, even though there is still a considerable urgency related to this process, as indigenous peoples cannot afford to wait to have their human rights guaranteed and protected. However, a cohesive set of concepts and normative theories to disentangle indigenous rights in international law is seriously lacking, which makes indigenous rights vulnerable to challenge. Moreover, the focus in the field has remained consistently legal, and mostly doctrinal, and is in great demand of empirical works that offer explanatory and causal claims of the indigenous rights in international law.
Who Are Indigenous Peoples? What Are Indigenous Rights?
It is fair to say that prior to the 1970s in the Western developed countries, indigenous peoples occupied no significant role in the textbooks of international law. They were largely considered as just legal units of domestic law (Wiessner 2008). As a response to the consciousness-raising efforts of indigenous peoples in the international forum, the 1970s started the global indigenous renascence (Hannum 1988). Gordon Bennett's groundbreaking work in 1978 heralded a rising interest among Western legal scholars in indigenous rights under international law (Bennett 1978). The scholarship of Russell Lawrence Barsh and Douglas Sanders helped sustain such interest in indigenous rights among North American legal scholars in the 1980s (Barsh 1983, 1986; Sanders 1983). In his landmark 1990 book, The American Indian in Western Legal Thought, Robert Williams provided a historical survey of many of the writings and lectures of major European thinkers and religious figures, and claimed that these theories provided a moral cover for the often brutal subjugation of indigenous peoples and for the taking of their lands. Building upon Williams' work, other writers such as S. James Anaya have expanded the field to encompass a wide range of topics concerning indigenous issues under international law (Anaya 1996).
Today, a diverse community of indigenous and non-indigenous legal and interdisciplinary scholars around the globe has produced a comprehensive program on indigenous rights in international law. Major figures among contemporary international law scholars have now paid attention to indigenous issues (Falk 2000). Further, the adoption of the Declaration on the Rights of Indigenous People in 2007 has rekindled the indigenous rights scholarship, which covers the Declaration's scope, applicability, and implications for national law on indigenous rights (Wiessner 2008; Mansell 2011; Newcomb 2011).
In general, the literature on indigenous rights in international law has largely focused on two main issues: the concept of indigenous peoples and the content of indigenous rights. While exploring the theoretical controversies surrounding these two issues, this section also addresses the corresponding policy struggles, as most indigenous rights scholarship also discusses the policy aspect of indigenous rights.
The Concept of “Indigenous Peoples”
In 1995, the Special Rapporteur to the UN on indigenous peoples, Erica-Irene Daes, stated that a definition of indigenous peoples was unnecessary because “historically, indigenous peoples have suffered from definitions imposed by others” (Daes 1995). Indigenous representatives on several occasions have also expressed such a view before the UN Working Group on Indigenous Populations that “a definition of the concept of ‘indigenous people’ is not necessary or desirable” (Simpson 1997).
Despite the opposition from some indigenous groups, considerable efforts have been made to define who exactly “indigenous peoples” are. This question, while controversial, has concerned not only the theorists of indigenous rights but also the practitioners of international law, as a lot hinges on whether the group could be formally identified as indigenous in international law.
Scholars generally agree that indigenous societies are vastly heterogeneous but they endure remarkably similar experiences such as lack of statehood, economic and political marginalization, and cultural and racial discrimination (Fliert 1994; Cadena and Starn 2007). Various terminologies are associated with, but refer to different aspects of, “indigenous peoples”: native (a term that mostly refers to the origins of an individual); first nations, which stem from the treaties made in the last centuries; autochthonous peoples (a French term referring to those residing in the same place since time immemorial); aboriginal, which has been employed in Australia to deemphasize the condition of colonial-like dependence on a national state; and “indigenous,” a term commonly used in Anglo-Saxon literature that “carries strong connotations of authenticity, belonging and time-honored prescriptive rights” (Nesti 2001). The mainstream postcolonial theory tends to use “indigeneity,” while some Native American scholars prefer the term “indigenousness” as a more authentic description of the status of indigenous groups in the Americas. As the term “indigeneity” commonly intersects with notions of race, marginality, imperialism, and identity as well as hybridity, essentialism, authenticity, diaspora, and the Third World, it has become one of the most contentiously debated concepts in postcolonial studies (Ashcroft, Griffiths, and Tiffin 2006).
In particular, the definitions of indigeneity have evolved over time to reflect the changing perceptions of the people, which have been characterized by the constant struggle between the falsely asserted indigeneity of colonizers and that of indigenous peoples (Schwarz and Ray 2005). Indigeneity is at once historically contingent and encompassing of the nonindigenous. For instance, during the colonial era, the concept was employed to refer to all non-European natives in European colonies. At the beginning of the postcolonial era, indigeneity was popularized as a concept referring to non-Europeans in countries where European descendants remained dominant. The last several decades have witnessed a reconceptualization of the notion of indigeneity itself. The primary impetus in reconsidering “indigeneity” comes from the postcolonial movements that examine the historical impact on populations of European imperialism (United Nations 2009).
As indicated above, “indigeneity” is a socially constructed and politically contingent concept. This concept has met with acceptance, rejection, and strategic use in the international indigenous movement. Some states, including China, India, Myanmar, and Indonesia, have rejected the concept. The post-Soviet states have produced partial equivalents in the process of modifying their systems of ethnopolitical categorization. On the other hand, states like the Philippines have etched the concept in their constitutional documents (Merlan 2009).
In addition to “indigenous” or “indigeneity,” the concept of “peoples” has also been fiercely debated in international law. The debate centers on the question of whether “peoples” entail collective rights such as self-determination. Generally speaking, in international law, peoples have more rights than populations. “Peoples” not only have the rights of an individual, such as civil and political rights, but also those of collective entities such as self-determination. Indigenous peoples and some international organizations prefer to use “peoples” to “nations,” “tribes,” or “populations.” For example, the Chairperson of the UN Working Group on Indigenous Populations (Erica-Irene Daes) calls the title of her own Working Group a “relic of racism and racial discrimination” (Fliert 1994). Some state governments oppose the use of the term “peoples” in regards to indigenous peoples because they fear its association with the right of secession and independent statehood. Those states would rather use the terms “tribes” or “populations,” which may not have such associations. Some international legal documents have chosen to use “peoples” rather than “tribes” or “populations.” For example, the ILO abandoned the term “populations” by adopting Convention 169 (on Indigenous and Tribal Peoples), which revised ILO Convention 107 (on Indigenous and Tribal Populations). In the 2002 UN World Summit, the unqualified term “indigenous peoples” was adopted unconditionally for the first time in a UN official document (Jentoft, Minde, and Nilsen 2003).
Several frameworks have been proposed as to what constitute the necessary and sufficient criteria that identify, or should identify, indigenous peoples (Scheinin 2005). Nevertheless, none of these frameworks could claim to be universally acceptable, as they inevitably are either over-inclusive or under-inclusive. In 1972 the Special UN Rapporteur José R. Martínez Cobo provided a frequently cited definition of “indigenous peoples”:
Indigenous populations are composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them, by conquest, settlement or other means, reduced them to a non-dominant or colonial condition; who today live more in conformity with their particular social, economic and cultural customs and traditions than with the institutions of the country of which they now form part, under a state structure which incorporates mainly national, social and cultural characteristics of other segments of the population which are predominant.
(UN Doc. E/CN.4/Sub.2/1986/Add.4)
But this definition has been criticized as freezing “the identity of indigenous peoples in a historical-chronological axis,” over–simplifying “the indigenous culture, customs, religion, society and history,” and failing to “explain the phenomena of survival of the ‘indigenous’ identity in the face of adversity” (http://www.acpp.org/sevents/0809.html), hence applying to “only a limited group of indigenous peoples in the Americas, Australasia and the Pacific” (Fliert 1994).
In 1983 the UN Working Group on Indigenous Populations expanded this definition, and in 1986 further added the principle of self-identification, that is, any individual who identified himself or herself as indigenous and was accepted by the group or the community as one of its members, was to be regarded as an indigenous person. The ILO Convention 169 of 1989 (Art. I) provides a much broader definition but makes a distinction between tribal and indigenous peoples due to the pressures from different Asiatic countries (Nesti 2001). The World Bank (operational 4.20, 1991) does not define the term but offers a more operational one. The Draft UN Declaration on the Rights of Indigenous Peoples of 1993 includes neither a definition of indigenous peoples nor even a provision that would specify the scope of application of the instrument. This omission, according to the Chairperson – Rapporteur of the UN Working Group Erica-Irene Daes – is due to the fact that “historically, indigenous peoples have suffered from definitions imposed by others” and, as a result, in certain countries many indigenous peoples have been declassified (Daes 1995; Bose 1996). The 2007 UN Declaration on the Rights of Indigenous Peoples is also criticized as lacking a clear definition of indigenous peoples (“United States Joins Australia and New Zealand in Criticizing Proposed Declaration on Indigenous Peoples' Rights” 2007).
In general, both scholarly discussion and international legal policy have been struggling with finding an agreed definition of “indigenous peoples.” This essay defines “indigenous peoples” broadly as “the living descendants of pre-invasion inhabitants of lands now dominated by others” (Anaya 2004). Nonetheless, despite the lack of a universally acceptable definition, the concept of “indigenous peoples” has been gradually accepted regardless. Like the concept of “indigenous peoples,” the content of “indigenous rights” is also full of controversies.
The Content of “Indigenous Rights”
In the past several decades, the international indigenous movement has successfully drawn international attention to the struggles that almost all indigenous peoples have experienced and are still experiencing (Tennant and Turpel 1990). As a response, the contemporary international law began to address indigenous rights. The Universal Declaration of Human Rights (UDHR) in 1948 is the first international document that recognizes the need to protect indigenous groups. But the Declaration only addresses individual rights of indigenous peoples. The ensuing International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social, and Cultural Rights (ICESCR) also apply to indigenous rights, but they do not contain any articles specifically on indigenous peoples. The first international convention specifically on indigenous rights was the International Labor Organization Convention No. 107 of 1957. This convention affirmed states' obligations to respect the indigenous way of life. However, Convention 107's approach was heavily criticized as “integrationist” with the aim of promoting the “modernization” and integration of such groups into existing societies. Accordingly, Convention 107's provisions suggested that rights for indigenous people were only valid until they achieved full integration into colonizing societies. This approach treated indigenous peoples as individuals or subgroups within a larger society rather than as a unique collective entity that has distinctive characteristics and therefore deserves special protection (International Labor Organization 2014a, 2014b).
In 1971, work began on the first UN study concerning discrimination against indigenous peoples. The Martínez Cobo report in the late 1970s commissioned by the UN documented discrimination against indigenous people and appealed to an international community for the recognition of indigenous rights at both international and state levels. The 1980s started with the establishment of the UN Working Group on Indigenous Populations and ended with ILO No. 169, which replaced Convention No. 107's integrationist strategy with increased respect for ethnic and cultural diversity. However, Convention No. 169 is limited in its impact as it failed to engage indigenous peoples during its drafting process and has not been widely ratified. The 1993 Draft Declaration further established the role of indigenous rights under international law (Guzman 1996–7). The most recent 2007 Declaration of Rights on Indigenous Peoples solidified the improved status of indigenous peoples in the international legal forum.
These instruments have guaranteed important rights for indigenous peoples. Nevertheless, the question has remained as to whether these protections are enough to safeguard indigenous peoples, or whether a separately formulated response to their situation is necessary and/or appropriate. Scholars such as Patrick Thornberry, Benedict Kingsbury, and Siegfried Wiessner argue that indigenous voices will get lost under a generalist human rights system (Wiessner 1999; Kingsbury 2001; Thornberry 2002). Richard Falk concurs and states that “indigenous peoples are in the situation where their claims for protection cannot be coherently understood except when treated separately” (Falk 1988). Other scholars like Jeff Corntassel and Tomas Primeau (2006) believe that generalist human rights principles are sufficient to meet the needs of indigenous peoples.
In addition to whether there should be a separate set of rights specifically for indigenous peoples, the following issues concerning the content of “indigenous rights” are also contentious: self-determination; economic, social, and cultural rights; and collective rights.
The concept of self-determination is among the most confusing and controversial with regards to indigenous rights in international law. It is very difficult to discern its various aspects, since it is confounded with questions regarding the definition of peoples as mentioned above, collective rights, and autonomy. Scholars argue that the right to self-determination is clearly articulated in UDHR, and Common Art. 1 of both the ICCPR and the ICESCR, which states that: “[a]ll 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.” However, some states argue that demands for self-determination generate nationalist or separatist conflicts. Since the UN is formed by states that are primarily concerned with their self-interest, states quickly limit the extension of this principle only to cases of decolonization. Scholars have challenged this limitation and questioned whether the right to self-determination can be really exercised if it can only be implemented following borders that have been settled by colonizing states (Nesti 2001).
The 2007 Declaration of Rights of Indigenous Peoples refers to self-determination as the full participation of indigenous peoples in decisions concerning them, and indigenous peoples making decisions about their own affairs, or having some form of territorial autonomy. Art. 4 provides that one way of exercising the right is through some form of autonomy or self-government for indigenous peoples in their internal affairs. To counter secession arguments put by some states, explicit reference was made in Art. 46 to safeguard territorial unity.
Most states have voted for the 2007 Declaration of Rights of Indigenous Peoples and accepted the right of self-determination for indigenous peoples provided that it does not threaten the territorial integrity of the state. However, certain countries including the United States, Australia, Canada, and New Zealand, which voted against the 2007 Declaration, have continued to oppose the right of self-determination.
Not only do the states and indigenous groups have different interpretations of the details of “self-determination,” but indigenous peoples among themselves also have had disagreements over the issue (Sanders 1991; Torres 1991; Stavenhagen 1992; Fliert 1994). Even though the international indigenous movement collectively has as one of its main objectives to assert the right to self-determination, indigenous communities have varied preferences as to how to exercise this right, from different degrees of autonomy within the nation-state to full sovereign independence (Brøsted et al. 1986; Assies and Koekema 1994). The Draft Declaration (1993) clearly affirms the right of self-determination of indigenous peoples, using the wording of Common Art. 1 of the two Covenants, but then seems to link this right to the right to autonomy or self-government in Art. 31. The UN Working Group on Indigenous Populations' report further complicates the issue, as its president, Erica-Irene Daes, explains that the principle of self-determination was intended only in its internal sense instead of the formation of independent states (Daes 1993).
The issue of whether indigenous peoples have the right to self-determination has been directly addressed by only a few international bodies. The Committee on Human Rights has ruled that it does not possess the authority to determine collective claims of a people's right to self-determination, even though Art. 1 of the ICCPR explicitly provides for such right (Barsh 1993). The Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), in the so-called “Case of the Miskitos” of Nicaragua, held that the right to self-determination could never justify disrupting the territorial integrity of a sovereign state, but affirmed that special protection should be accorded to Miskitos regardless. This limits the indigenous people's right to self-determination to internal autonomy rather than external secession from their state (Nesti 2001).
While indigenous peoples have less successful experiences of bringing their self-determination claims to the UN and regional bodies, they have won the attention of nonbinding grassroots tribunals. For example, the Fourth Russell Tribunal during the 1980s heard fourteen cases from the Indian peoples of the Americas and recognized many claims, including the right to self-determination (van Vree 1980).
The question of indigenous right to self-determination has been extensively studied and theorized throughout various disciplines and interdisciplinary communities. For example, works by authors such as Vine Deloria, Jr. (1969), Winona LaDuke (1999), M. Annette Jaimes (1992), and Rudolph R ser (Rser and Minugh 1989) have critically assessed the federal policies governing native peoples in the United States. Wiessner (1999), in particular, has proposed a dichotomy between internal and external self-determination in the context of indigenous peoples:
1 “external” self-determination, i.e., the right of peoples to freely determine their international status, including the option of political independence;
2 “internal” self-determination, the right to determine freely their form of government and their individual participation in the processes of power.
Like Wiessner, Professor James Anaya has suggested a reconceptualization of self-determination. He differentiates “substantive aspects” of the right, which are in general and broad terms, and “remedial aspects,” which mainly refer to what follows violation of the right and are much more limited and context-specific (Anaya 2004).
Regarding where exercise of self-determination could be considered acceptable, Kingsbury (2001) has suggested five categories: (a) mandated/trust territories; (b) distinct political geographic entities subject to gross failure of the duties of the state; (c) other territories where self-determination is applied by the parties; (d) highest-level constituent units of a federal state in the fact of dissolution; (e) formerly independent entities reasserting their independence with the tacit consent of the state, where their incorporation into the state was illegal or of dubious legality.
As indicated by the above-mentioned works of Wiessner, Anaya, and Kingsbury, the contemporary scholarly conceptions of self-determination, particularly for indigenous peoples, do not necessarily include the right to separate from a state. However, Hendrix (2008) claims that indigenous peoples have the right to separate from the states presently ruling them. He provides a theoretical foundation for why indigenous peoples in stable democratic societies have a right to separation and offers procedures for how such separations could take place.
In addition to the right to self-determination, the indigenous rights scholarship has also extensively discussed how to protect indigenous economic, social, and cultural rights. The next subsection examines various frameworks that have been proposed concerning the protection and promotion of indigenous peoples' economic, social, and cultural rights.
Economic, social, and cultural rights
Traditionally, the debate on indigenous economic, social, and cultural rights had been focused on indigenous rights to their land and other natural resources. In particular, historical sovereignty and treaty rights have been proposed as the philosophical foundation for such entitlement.
The framework of historical sovereignty is well described by the UN Special Rapporteur in her report (Daes 1995). In the 1970s, the beginning of international indigenous movements, the debates focused on the importance of land and other natural resources to indigenous peoples and their historical sovereignty over these resources. The concept of “historical sovereignty” created during the decolonization movement after World War II was then applied to indigenous issues and gradually gained currency. This concept is affirmed by the 2007 UN Declaration on Rights of Indigenous Peoples: “the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” (Art. 26).
Additionally, treaty rights are also presented as an approach to protecting indigenous lands and other natural resources. During the 1700s and 1800s, numerous treaties were made between indigenous communities and their colonial governments. However, since then the indigenous communities and their colonial governments have interpreted these treaties in a very different way. Many (if not most) of these treaty rights have been chipped away from the indigenous communities, the direct consequence of which is that vast lands and natural resources have been taken away from the indigenous groups. Recently indigenous peoples have tried to use treaties such as the Indian treaties and the Treaty of Guadalupe Hidalgo to support their claims for natural resources including lands (Tsosie 2000). But they have not been very successful. The 2007 UN Declaration of the Rights of Indigenous Peoples has also formally recognized the treaty rights of the indigenous peoples.
Before the 1990s the scholarly and policy discussion on indigenous rights essentially neglected indigenous cultural and social rights. The 1993 Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples is the first one of its kind that is exclusively dedicated to the protection of cultural and intellectual property of indigenous peoples. Since then, a fundamental change concerning the role of indigenous cultural and intellectual properties has been taking place in international law. A consensus was reached as to the importance of indigenous cultural and intellectual properties during the discussions of the 1993 Draft Declaration on the Rights of Indigenous Peoples (Gray 1996).
The first mechanism proposed to protect indigenous peoples' cultural and natural heritage is to utilize the existing intellectual property (IP) law and apply it to indigenous cultural and natural property. The commodification of intangible cultural and intellectual property such as music, motifs, prayers, ceremonies, and traditional knowledge has widely frustrated indigenous communities (Daes 1995). The emerging issue of “biopiracy” that exploits the traditional knowledge of indigenous communities is even more disturbing (Drahos 2000; Bengwayan 2003; Sundaram 2005). The present intellectual property legal frameworks for the most part have failed in protecting indigenous cultural and intellectual properties (Paterson and Karjala 2003). They commonly were designed without taking much consideration of the interests of indigenous peoples (Safrin 2004). Scholars are calling for greater involvement of indigenous peoples in the decision-making process (Goldberg and Badua 2008). Some urge the reform and expansion of the current IP system to include communal and collective ownership (Sedjo 1992; Huft 1995; Ghosh 2003; Carpenter 2004); others propose the establishment of a more “globally harmonized IP regime” (Sundaram 2005), abandoning the use of property rights to protect biocultural resources of indigenous peoples (Chen 2001; Heald 2003), more actively engaging the World Bank (Carlson 1997), and using more creative contractual provisions (Rubin and Fish 1994).
The second mechanism to protect indigenous cultural and intellectual property focuses on cultural rights. The most widely accepted legally binding provision on cultural rights of indigenous peoples is Art. 27 of the ICCPR. Scholarly works on Art. 27 have touched on its applicability, scope, and limits (Nowak 1993; Thornberry 1993). In general, the consensus is that the Committee on Human Rights has prepared to protect and promote individual indigenous cultural rights through the application of Art. 27 in various cases such as Lovelace v. Canada (Barsh 1993).
However, some scholars have challenged the increasing assertion of cultural rights by indigenous peoples. Karen Engel (2010) questions the rising cultural claims used by indigenous advocates in the international legal forum. She argues that the ascending focus on cultural rights has undermined the development of more transformative and sustainable bases for indigenous empowerment and development. This is a rare book-length work that places the evolution of indigenous rights in the broader political context, rather than as an exegesis of pertinent international law.
With the growing assertion of indigenous cultural rights, indigenous peoples' rights and knowledge have fundamentally influenced international environmental law. Whereas, historically, international environmental law was state-centered and did not concern the rights and the role of indigenous communities regarding environmental issues, recently a number of debates have emerged touching on issues central to indigenous peoples. The academic community has exhibited increased awareness of the symbiotic relationship between indigenous cultures and the natural environment, and the gradual realization that indigenous knowledge may provide solutions to environmental sustainability. The 1992 UN Conference on Environment and Development (also called the Earth Summit) represented a turning point in the promotion of indigenous peoples' rights relating to the environment. For the first time, indigenous communities were placed center stage of the international environmental movement. Since then, debates have embraced various parts of the lives of indigenous communities, such as cultural autonomy, traditional hunting and fishing practices, natural resources, and traditional knowledge (LaDuke 1994; Mauro and Hardison 2000; McGregor 2004; Firestone, Lilley, and Noronha 2005).
In terms of international legal policy on the relation between indigenous rights and their environment, both the Inter-American Court and the African Commission on Human and Peoples' Rights have especially focused on the rights of indigenous and tribal peoples affected by environmental degradation resulting from extraction activities and their forceful removal from their traditional lands (Analytical study on the relationship between human rights and the environment, A/HRC/19/34, 2011). Some international instruments, such as the International Declaration of Indigenous Peoples on Climate Change addressing indigenous peoples and their environment, aim at more than just protecting indigenous cultures; rather, the focus has shifted to how the nonindigenous population may learn about environmental protection and the value of natural resources from indigenous cultures (Manus 2005).
In short, both academic works and policy concerning indigenous peoples' economic, social, and cultural rights have witnessed a paradigm shift from the right to land and other natural resources to indigenous cultural rights. In addition to indigenous economic, social, and cultural rights, collective rights that indigenous rights usually entail have also challenged the conventional international law. This is the focus of the following subsection.
Collective rights v. individual rights
Collective rights have historically been incompatible with international law, which has traditionally centered on individuals and states (Piechowiak 2000). Indigenous rights, which include a set of collective rights, therefore have been an uneasy fit to international law. Nonetheless, with the emergence of “third-generation” rights, the international legal forum has grown to accept indigenous group claims.
Another difficulty with indigenous rights, like other collective rights, lies in the tension between collective rights and the rights of individual members of the groups. Collective indigenous rights, argued by some, undermine individual indigenous rights (Newman 2006–7). With regards to such tension, Kymlicka (1995) has offered a series of studies that shed light on how to resolve this issue. He differentiates between good collective rights that involve inter-group relations and bad collective rights that are imposed by groups upon intra-group relations.
Similarly, Wiessner (1999) provides an explanation concerning the nature of indigenous collective rights: one's clan, kinship, and family identities are vital parts of one's personal identity; the indigenous group consists of a network of personal relationships. In the minds of indigenous peoples, their communities are not, like a Western nation-state, entities with a distinct Hegelian existence separate and apart from their individual members. Members of indigenous communities are closely connected to each other in a network of deeply committed horizontal relationships. Still, there are structures of authority within indigenous groups, and there is a process to form a common will. Such a process of decision making and its cultural, geographic, social, and economic contexts should be protected and constitute the base of collective rights of indigenous peoples. As a result, collective rights are necessary in order to implement individual members' rights. According to Weissner (1999), collective rights and individual rights, for indigenous peoples, are supplemental to rather than exclusive of each other.
For indigenous peoples, collective rights are essential to secure their cultural survival. For example, Lowitja O'Donoghue acknowledges the necessary recognition of collective rights in that:
it is precisely because the collective rights have not been acknowledged that the individual rights of indigenous persons, for example the right to equality of opportunity in the provision of education, employment and health care, have not been realized in any nation in the world. Only when our collective identities have been recognized will the appalling disadvantages that we suffer as individuals be redressed.
In practice, collective rights have emerged and become increasingly acceptable under international law (Mazel 2009). The important international human rights bodies, including the UN Committee of Human Rights, the UN Committee on the Elimination of Racial Discrimination (CERD), and the Inter-American Commission on Human Rights, have referred to indigenous “peoples” as holders or beneficiaries of rights. In particular, some recent decisions issued by the Inter-American human rights institutions in the cases of the Awas Tingni community in Nicaragua, the Western Shoshone people in the United States, and the Maya people in Belize explicitly uphold the collective rights of indigenous peoples over their lands and resources, which suggests a growing trend of acceptance of collective rights under international law (Anaya 2006).
In sum, the literature on indigenous rights in international law has addressed two fundamental issues (Who are “indigenous peoples”? and What are “indigenous rights”?) among others that have plagued the further advancement of indigenous rights in international law. Even though there is no agreement over the concept of “indigenous peoples” and the content of “indigenous rights,” the indigenous rights scholarship has developed into a diverse area of study that has closely followed and informed the policy development of indigenous rights under international law.
Indigenous Rights and the Role of the UN and Indigenous NGOs
Scholars generally agree that one of the most important goals of the international indigenous movement is to advance indigenous rights under international law (Morgan 2007). Several key actors have played significant roles in this movement. Three UN bodies, namely the Working Group on Indigenous Populations, the Permanent Forum on Indigenous Rights, and the Special Rapporteur on the Rights of Indigenous Peoples, have been instrumental in setting norms on indigenous rights. Two UN conferences – the International NGO Conference on Discrimination Against Indigenous Populations in the Americas and the International NGO Conference on Indigenous Peoples and the Land (held in 1977 and 1981, respectively) – provided an early forum for indigenous voices and ignited the norms of human rights applied to indigenous peoples (Morgan 2007).
Following these two conferences, the UN in 1982 established the Working Group on Indigenous Populations (WGIP) under the auspices of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities that is composed of five independent experts, which solidified an institutional space within the UN to address indigenous issues and develop international standards on indigenous rights. As it is at the bottom of the UN hierarchy, such marginalization in a way has enabled the WGIP to become the most open body to indigenous peoples within the UN. In 1993 the WGIP formulated and adopted the UN Draft Declaration on the Rights of Indigenous Peoples that arguably has justly reflected the aspirations of indigenous peoples, in part due to the fact that the WGIP encouraged the participation of indigenous NGOs (Wilmer 1993).
In addition, the UN Economic and Social Council adopted a resolution establishing the Permanent Forum on Indigenous Issues in 2000. As a high-level body within the UN system consisting of eight indigenous representatives and eight state representatives, the Permanent Forum has also actively engaged indigenous peoples. Unlike the WGIP, this body is directly responsible to the Economic and Social Council and the General Assembly. In this sense, it supersedes the entire indigenous rights mechanism and reports directly to the UN, and thus has the potential to further elevate the status of indigenous rights (Castellino 2005).
Besides the WGIP and the Permanent Forum, the Special Rapporteurs also have contributed to the awareness raising of indigenous rights. In 1969 Special Rapporteur Hernán Santa Cruz submitted the preliminary report of the Special Study on Racial Discrimination in the Political, Economic, Social, and Cultural Spheres to the Sub-Commission on the Prevention of Discrimination and Protection of Minorities. Cruz concluded in his final report of 1971 by recommending an appropriate UN agency to conduct a comprehensive study on indigenous issues. Acting upon this proposal, the Sub-Commission appointed José R. Martínez Cobo as the Special Rapporteur to engage in the study, which meant that “indigenous populations” emerged as a distinct category different from “minorities” (Hannum 1988; Sanders 1989).
Cobo's study of the Problem of Discrimination against Indigenous Populations was completed in 1987. It covers a variety of topics relating to the protection of indigenous peoples. In particular, as mentioned earlier, the definition of indigenous populations provided in this report has become a point of reference within the UN (Howard 2003). This study has prompted the greater engagement of indigenous NGOs at the international level and stimulated wider international interest in indigenous rights (Hannum 1988). However, Sanders (1989) argued that this study is inaccessible, lengthy, and incomplete, and because it was seriously outdated, it was less influential than expected. The other comprehensive studies put forward by the Rapporteurs following Cobo have generated much less response and were generally ignored (International Indian Treaty Council 2004; Corntassel 2007).
Other UN agencies, such as the UN Voluntary Fund for Indigenous Populations established in 1985 and the Voluntary Fund for the UN International Decade of the World's Indigenous Peoples established in 1996, have also facilitated the broad participation of indigenous organizations in the UN by providing financial assistance. The Indigenous Peoples and Minorities Section (IPMS) of the Office of the High Commissioner for Human Rights (OHCHR) seeks to improve human rights protection for indigenous peoples and minorities at the international and national levels and to promote the UN Declaration on the Rights of Indigenous Peoples, among others. The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), established by the Human Rights Council, worked with the Special Rapporteur on the Rights of Indigenous Peoples and the Permanent Forum on Indigenous Issues to convene the World Conference on Indigenous Peoples in 2014. However, in general, the inter-agency cooperation on indigenous rights within the UN remains inadequate, ad hoc, and fragmented (Corntassel 2007).
The emergence of indigenous rights within the UN was not an accident. Instead, it was a purposeful undertaking by a large number of indigenous NGOs (Morgan 2007). The first international indigenous NGOs emerged in the late 1950s and the world witnessed a proliferation of indigenous NGOs in the US and Canada during the 1970s (Corntassel 2007). In 1975, the World Council of Indigenous Peoples commenced a global framework that interconnects the national and international networks of indigenous groups (Muehlebach 2001). The indigenous NGOs have managed to convene several conferences that have raised the awareness of indigenous rights and issues, such as two Inuit Circumpolar Conferences and the First Congress of Indian Movements of South America (Hannum 1988). However, despite their relative success at elevating indigenous rights within the UN, indigenous NGOs' lack of access to the UN and the UN's state-centric model have led some to question whether indigenous NGOs should continue to focus on utilizing the UN or seek an alternative global forum to advance indigenous rights (Corntassel 2007).
In general, the relatively scant literature on the role of the UN and indigenous NGOs in the international indigenous movement has shed some light on how indigenous rights have been advanced in international law. Nonetheless, more scholarship on the inner workings of various actors and how they have worked with each other could significantly contribute to our understanding of the issues, such as whether the conflicts among indigenous NGOs have hindered the advancement of indigenous rights and the overall process of the international indigenous movement.
Going Beyond the Doctrinal
The area of indigenous rights in international law is both exciting and valuable in that the indigenous rights scholarship – like other emancipatory fields – has had its political purpose at heart, as a large portion of its scholars are also indigenous rights activists. However, such distinct political features also limit the scope of the literature. In general, the current indigenous rights scholarship is primarily on the international law-making process. Theoretically, it is mostly doctrinal. Methodologically, it is overwhelmingly legal. To ensure the healthy development of this field, it desperately needs to broaden its scope and expand its methods. The following section examines several elements that have been unexplored or under-explored.
Thematically, indigenous rights scholarship needs to place the emergence of indigenous rights in the larger historical, legal, social, political, cultural, and economic contexts. Indigenous peoples have traditionally been seen as objects of international law and as targets for international legal recommendations. In contrast, their international efforts to advance, promote, and protect indigenous rights worldwide have garnered less attention. The recent changes, however, seem to indicate that indigenous peoples are playing, or have the potential for playing, increasingly prominent roles in international legal affairs (Barsh 1986; Hannum 1988; Williams, 1990a; Torres 1991). However, the majority of indigenous rights scholarship only examines policy on indigenous rights, rather than the broader contexts of indigenous rights, or the rise of indigenous rights as a phenomenon. Oguamanam (2004–5) in his work illustrates an attempt to disentangle the emergence of indigenous rights under international law and claims that it coincides with the return of natural law theory to international law.
Moreover, the current scholarship has focused heavily on how to ensure the position of indigenous rights under international law, and commonly overlooked the efficacy of these policies. In practice, states are generally supportive of international law on indigenous rights but reluctant to merge international with national law (Corntassel 2007). For example, Norway has long been a champion of indigenous rights in international forums. It was instrumental in forming ILO Convention No. 169 and was the first to ratify it. But its unwillingness to apply ILO Convention No. 169 to the Sami community has received heavy criticism (Jentoft et al. 2003). Therefore, if the ultimate political goal of the indigenous rights scholarship is to better the conditions of indigenous peoples, the study of the efficacy of international legal prescription of indigenous rights is imperative, otherwise the considerable efforts put forth by both the academic community and international indigenous movement could remain only symbolic. Anaya (1991) is a rare example that discusses the need for effective implementation of international norms to secure the survival of indigenous peoples. Westra (2008) proposes a novel approach to implementing international norms on indigenous rights in the domestic setting that utilizes the Alien Tort Claims Act of the United States.
In terms of methodology, this field is still one-dimensional. Siegfried Wiessner (1999) offers a much-needed global comparative analysis of indigenous rights. More empirical work employing a wide range of methods that explores how the society at large responds to indigenous rights and the role of various actors in indigenous movements would significantly enrich this line of inquiry. For instance, among various analyses of the 2007 Declaration on the Rights of Indigenous Peoples, there is no quantitative treatment of the states' response to this Declaration that could offer a glimpse of the efficacy of international indigenous rights norms. Moreover, a detailed qualitative process tracing an historical analysis of international legal decision making on indigenous rights could enhance our understanding of the factors that contribute to the final international legal pronouncements of indigenous rights.
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Links to Digital Materials
The Rights of Indigenous Peoples – University of Minnesota. At http://www1.umn.edu/humanrts/e...dumat/studyguides/indigenous.html, accessed November 4, 2014. This site contains useful basic information concerning indigenous rights under international law.
International Indigenous Law Research Guide – Arizona State University. At http://www.law.asu.edu/library...alIndigenousLawResearchGuide.aspx, accessed November 4, 2014. Provides several links that are helpful for conducting research on international indigenous law.
United Nations Office of the High Commission for Human Rights. At http://www.ohchr.org/EN/Pages/WelcomePage.aspx, accessed November 4, 2014. This website provides an extensive overview of indigenous peoples and the UN system. It also provides links to the Working Groups, the Permanent Forum, Special Rapporteur, UN documents, funding, and the UN system.
UN Guide for Indigenous Peoples. At http://www2.ohchr.org/english/issues/indigenous/guide.htm, accessed November 4, 2014. This website includes extensive information on indigenous peoples and the UN system, including Indigenous Peoples, the UN and Human Rights, Human Rights Treaty Bodies and Indigenous Peoples, Indigenous Children and Youth, and Indigenous Peoples and the Environment.
International Work Group for Indigenous Affairs. At http://www.iwgia.org/, accessed November 4, 2014. This group's publications – a yearbook titled The Indigenous World, a quarterly journal named Indigenous Affairs, and other thematic books – offer comprehensive information on indigenous affairs.
European Union Human Rights and Democratization Policy – Promoting and Protecting the Rights of Indigenous Peoples. At http://eeas.europa.eu/human_rights/ip/index_en.htm, accessed November 4, 2014. This website has a link to the EU Council Resolution on Indigenous Peoples and lists names and email addresses of relevant EU personnel. It also has links to international organizations and indigenous NGOs.
Inter-American Commission on Human Rights. At http://www.oas.org/en/iachr/, accessed November 4, 2014. This is the website of the Human Rights Commission of the Organization of American States. Most information relates to human rights in general, but under the heading “Rapporteurships” there is a link to the Proposed American Declaration on the Rights of Indigenous Peoples.
Center for World Indigenous Studies. At http://cwis.org/, accessed November 4, 2014. The Center's website contains information on education programs and conferences, publications, research, and domestic and international policy concerning indigenous peoples.
NativeWeb. At http://www.nativeweb.org/, accessed November 4, 2014. The online Resource Center includes a nations index, geographic regions index, news/events, legal issues, and books and music. Links on this site provide pathways to detailed information concerning a wide range of indigenous issues.
Indian Law Resource Center. At http://www.indianlaw.org/, accessed November 4, 2014. The Indian Law Resource Center engages in legal advocacy for the protection of indigenous peoples' rights, cultures, and traditional lands. On the site are descriptions of the Center's casework, archives of newsletters, and links to relevant organizations and documents. The Center deals with cases in North and Central America.
I would like to thank Dr. Robert Beck and Dr. Henry Carey for their time and consideration of this essay.