⚖️Native American Legal Studies Unit 13 – Indigenous Rights in International Law

Historical Context

• Indigenous peoples have faced centuries of colonization, dispossession, and marginalization by dominant societies and states
• European colonization of the Americas, Africa, and Asia led to widespread violations of indigenous rights, including land theft, forced assimilation, and genocide
  • Doctrine of Discovery used to justify colonial claims to indigenous lands (Terra Nullius)
  • Forced relocation and confinement to reservations or missions
• 19th and early 20th century policies of assimilation sought to eradicate indigenous cultures and identities
  • Boarding schools separated children from families and communities
  • Bans on traditional languages, religions, and practices
• Indigenous activism and resistance movements gained momentum in the mid-20th century, leading to increased recognition of rights
• Decolonization and the rise of international human rights law provided new avenues for indigenous advocacy

Key International Legal Frameworks

• International Labour Organization (ILO) Convention No. 169 on Indigenous and Tribal Peoples (1989) is the only binding international treaty specifically addressing indigenous rights
  • Requires consultation and participation in decision-making
  • Recognizes rights to land, resources, and cultural integrity
• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) adopted in 2007 after decades of advocacy
  • Comprehensive statement of individual and collective rights
  • Emphasizes self-determination, land rights, and cultural survival
• Other relevant international instruments include:
  • International Covenant on Civil and Political Rights (ICCPR)
  • International Covenant on Economic, Social and Cultural Rights (ICESCR)
  • Convention on the Elimination of All Forms of Racial Discrimination (CERD)
• Regional human rights systems in the Americas, Africa, and Europe have also developed jurisprudence on indigenous rights

Indigenous Rights Defined

• Indigenous rights are inherent, collective rights that flow from indigenous peoples' distinct identities, cultures, and relationships to land
• Right to self-determination is foundational, enabling indigenous peoples to freely determine their political status and pursue economic, social and cultural development
• Rights to traditional lands, territories, and resources are central, given the spiritual, cultural, and economic significance of land
  • Includes rights to own, use, develop and control lands and resources
• Rights to maintain and develop distinct political, legal, economic, social and cultural institutions and practices
  • Includes customary laws, governance structures, and justice systems
• Rights to be free from discrimination and enjoy equal protection of the law
• Rights to give or withhold free, prior and informed consent for activities affecting their lands, resources, or ways of life

Land and Resource Rights

• Indigenous peoples have deep spiritual, cultural, and economic connections to their traditional lands and resources
• Colonial dispossession and ongoing resource extraction threaten these connections and undermine indigenous livelihoods and well-being
• International law recognizes indigenous rights to own, use, develop and control their lands, territories and resources
  • Includes rights to restitution or compensation for lands taken without free, prior and informed consent
• States must demarcate and protect indigenous lands and give legal recognition to indigenous land tenure systems
  • Duty to consult and obtain consent before approving development projects
• Indigenous land rights often conflict with state claims to own or control resources, leading to disputes over mining, logging, and other extractive industries
• Protecting indigenous land rights is crucial for cultural survival, environmental stewardship, and sustainable development

Cultural and Linguistic Rights

• Indigenous cultures and languages are inextricably linked to their lands, histories, and identities
• Assimilationist policies and globalization have threatened cultural and linguistic diversity, with many indigenous languages facing extinction
• International law recognizes rights of indigenous peoples to practice, revitalize and transmit their cultures and languages
  • Includes rights to traditional knowledge, cultural heritage, and intellectual property
• States must take measures to protect and promote indigenous cultures and languages
  • Bilingual and culturally appropriate education
  • Support for cultural institutions and media
• Cultural rights are interdependent with other indigenous rights, as land dispossession and denial of self-determination undermine cultural integrity
• Revitalizing indigenous cultures and languages is essential for individual and collective well-being and for preserving invaluable knowledge systems

Self-Determination and Sovereignty

• Self-determination is the right of indigenous peoples to freely determine their political status and development paths
• Includes rights to autonomy or self-government in matters relating to their internal and local affairs
  • Control over education, health, social services, and economic development
• External self-determination involves rights to participate in decision-making at the state level and maintain relations with other indigenous nations
• Indigenous sovereignty predates and survives European colonization and assertion of state sovereignty
  • Originates from indigenous peoples' inherent rights and relationships to land
• Conflicts between state sovereignty and indigenous self-determination remain a challenge in international law
• Implementing self-determination requires transforming colonial relationships and structures of power and ensuring indigenous participation and consent

Case Studies and Landmark Decisions

• Awas Tingni v. Nicaragua (2001) - Inter-American Court of Human Rights upheld indigenous land rights and required demarcation and titling of traditional territories
• Tsilhqot'in Nation v. British Columbia (2014) - Supreme Court of Canada recognized Aboriginal title and required consent for development on indigenous lands
• Endorois Case (2010) - African Commission on Human and Peoples' Rights found violations of indigenous land, cultural, and development rights in Kenya
• Kalina and Lokono Peoples v. Suriname (2015) - Inter-American Court held that Suriname violated indigenous rights by granting mining concessions without consultation or consent
• Ogiek Case (2017) - African Court on Human and Peoples' Rights found that Kenya violated Ogiek rights to land, non-discrimination, culture, and development
• These cases demonstrate the growing recognition of indigenous rights in international and regional jurisprudence and the importance of strategic litigation for advancing indigenous claims

Current Challenges and Future Directions

• Implementation gap between international norms and domestic laws and practices remains wide
  • States continue to prioritize resource extraction and development over indigenous rights
• Criminalization and violence against indigenous human rights defenders is a growing concern
  • Environmental activists face threats, attacks, and killings for defending land rights
• Climate change disproportionately impacts indigenous peoples, undermining traditional livelihoods and cultural practices
  • Indigenous knowledge systems are crucial for adaptation and mitigation strategies
• Disaggregated data and indicators are needed to monitor the realization of indigenous rights and development outcomes
• Indigenous participation in international decision-making, including at the United Nations, must be strengthened
  • Funding and capacity-building for indigenous organizations and movements
• Implementing the United Nations Sustainable Development Goals requires respecting and promoting indigenous rights and ensuring their full and effective participation