Introduction
The United Nations declared 1993 as the “International Year of the Indigenous People of the World.[1]” 1993 as the “International Year of the Indigenous People of the World.[2]” This declaration came only five hundred years after Christopher Columbus’ fateful arrival in what would become known as the New World. Half a century had passed since the Europeans brought diseases of the Old World to the New World, which systematically decimated the native population. Only five hundred years had passed since the Eurocentric, racially driven doctrines of discovery, conquest, terra nullius, just war, removal, assimilation, and allotment were legally used to justify the near elimination of native American populations.[3] Indigenous peoples are the most socially, politically and economically oppressed communities in the world. They are the most marginalized because the ideals that form the spiritual foundations of their society are considered incompatible with the ideals of modern culture.
This article traces the history of indigenous peoples ‘ rights in international law. It argues that discrimination against indigenous peoples has been maintained under international law on the basis of differences in the scale of civilisation. It will show how ‘universal standards’ can be applied not as an agent of liberation, but as a dominant agent. In doing so, the Third World Approaches to International Law (TWAIL) approach to the deconstruction of international law is adopted[4]. International law grants indigenous peoples rights with respect to ancestral lands, information, cultural protection, and human security. This paper looks at the sources of these rights and legal remedies for law violations. Protection of the traditions and wealth of indigenous peoples leads to maintaining the global climate.
Historically there has been no consistent description of indigenous peoples, and the words sometimes used differ locally. In Australia, for example, indigenous groups are commonly referred to as aborigines, and in the United States, they are referred to as Indian people or native Americans. S. James Anaya defines the term “Indigenous” in Indigenous Peoples in International Law as referring “broadly to the living descendants of pre-invasion inhabitants of lands now dominated by others.” The term “peoples” refers largely to communities with an identity which connects them to their past ancestors[5].
The Rights of Indigenous people at Stake
Despite international recognition and acceptance of the Universal Declaration of Human Rights, which guarantees the fundamental rights of all human beings, the human rights of indigenous peoples in practice remain without specific protections. Owing to oppressive government policies, Aboriginal Groups continue to face significant challenges to their basic life to this day. They aren’t even allowed to study their own languages in schools in many countries. By unjust treaties, sacred lands and artifacts are plundered from them. National governments continue to deny Indigenous Peoples the right to live and manage their traditional lands; they often pursue policies to exploit the lands that have sustained them for centuries.
Some States have argued in international negotiations on the protection and promotion of the human rights of indigenous peoples that more rigorous implementation of human rights principles will address the problem. On the other hand, Indigenous Peoples argue that they have so far not been consistently protected by such international human rights standards. What they argue is needed is the development of new international documents that address the specific needs of the Indigenous Peoples of the world. Although the Universal Declaration of Human Rights is intended to protect the human rights of all individual human beings, international law relating to collective human rights remains vague and may fail to protect Indigenous Peoples’ group rights.
The United Nations Declaration on the Rights of Indigenous Peoples
On 13 September 2007, the United Nations Declaration on the Rights of Indigenous Peoples was adopted by the General Assembly of the United Nations with 144 votes in favour, 11 abstentions and four states opposed (Australia, Canada, New Zealand and the United States of America). The several States have since reversed their policies, including the four that voted against but now backed the declaration. The Declaration is the most comprehensive instrument in international law and policy detailing the rights of indigenous peoples, containing minimum standards for the recognition, protection and promotion of these rights.
Although not consistently or uniformly implemented, the Declaration regularly guides states and indigenous peoples in the development of legislation and policies that impact indigenous people. By adopting the Declaration, the United Nations General Assembly stated that indigenous peoples have the right to self-determination and, accordingly, the right to decide their political status openly and also their economic, social and cultural growth is openly sought. Article 3 of the Declaration represents traditional Article 1 of the International Covenant on Civil and Political Rights and Economic, Social and Cultural Rights. All rights found in the Constitution are interrelated and indivisible, and the right to self-determination is no exception.
The Declaration recognizes the rights of indigenous peoples, including those traditionally held by them but now controlled by others as a matter of fact and also of law, to their lands, territories and resources. The Declaration recognizes the rights of indigenous peoples, including those traditionally held by them but now controlled by others as a matter of fact and also of law, to their lands, territories and resources. The provisions of the Declaration and ILO Convention No. 169 are consistent with interpretations by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights of economic, social and cultural rights[6].
Conclusion
To the outside world, and sometimes even within indigenous societies, the cultural distinctiveness of indigenous peoples is considered one of its distinguishing characteristics. Expressing the right to cultural equality, the Declaration contains numerous provisions to protect against discrimination and adverse cultural treatment, as well as positive measures to support indigenous peoples culture. These include their right not to be subjected to assimilation or destruction of their culture; the right to practice and revitalize their cultural traditions and customs, to teach their cultural mores, and to repatriate human remains; and the right to “keep, control, protect, and develop” their cultural heritage, traditional knowledge, and traditional cultural expressions.
Overall, recognition of their rights is fully justified from the perspective of equality and non-discrimination, taking into account the discrimination they have historically experienced as peoples and as individuals. An approach to equality and non-discrimination also promotes the recognition of their collective rights to their lands, territories and resources as being comparable to the rights of non-indigenous people to their properties, as defined by the Inter-American Court of Human Rights[7]. “Development” or creating corporations and governments seldom provide adequate substitutes for subsistence economies that sustain indigenous peoples. Additionally, such “development” often devastates people’s health by polluting their land, rivers, and other resources. International law offers protection and a way of relief from abuse of the rights of indigenous peoples. Thus, Protecting indigenous rights also protects the global environment.
[1] (G.A.Res.45/164, U.N.Doc.A/RES/45/164(Dec. 18,1990); see also Ronald Niezen, Recognizing Indigenism: Canadian Unity and the International Movement of Indigenous Peoples, 42 COMP. STUD. Soc’Y & HlST. 119, 132 (2000).)
[2] Howard Zinn, A People’s History of the United States: 1492-Present 1-3 (2003).
[3] Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest 13,99-100 (1990).).
[4] United Nations Permanent Forum on Indigenous Issues, United Nations Declaration on the Rights of Indigenous Peoples, available at: http://www.un.org/esa/socdev/unpfii/en/declaration.html.
[5] Anaya, S. James. Indigenous Peoples in International Law, p. 3. New York: Oxford University Press, 2004.)
[6] Human Rights Committee, general comment No. 23 (1994) on the rights of minorities and Committee on Economic, Social and Cultural Rights, general comment No. 21 (2009) on the right of everyone to take part in cultural life. Note, also, Inter-American Court of Human Rights, Case of the Plan de Sanchez Massacre v. Guatemala, Series C, No. 116, Judgement of 19 November 2004.
[7] Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua; Case of the Sawhoyamaxa Indigenous Community v. Paraguay, Series C, No. 146, Judgement of 29 March 2006.
This Article is Authored by Akshaya Chintala, Student at Symbiosis Law School, Hyderabad.
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