Ethnic minorities and indigenous peoples under international law

Since the creation of the UN, a general reluctance about the promotion of minority rights is evident in international law, despite occasional rises in enthusiasm for minority protection, especially in the face of ethnic tensions in Europe. As a result, compared to the international legal regime for indigenous peoples, legal protections for minorities are rather minimal. Even the most progressive instrument - the UN Declaration on Minority Rights (1992) - despite its non-binding legal status, does not specifically address the issue of land rights or protection against forced displacements. However, the Declaration, albeit half-heartedly, mentions the right of minorities to participate fully in the economic progress and development of their countries.” In his interpretation of "full participation”, the then Chairperson-Rapporteur of the Forum on Minorities, Asbjorn Eide, suggests that such a participation calls for the integration of everyone in the overall economic development of the society as a whole but in ways which make it possible for persons belonging to minorities to preserve their own identity and traditional resources.12

Moreover, Article 5(1) of the Declaration stipulates that the planning and implementation of national policies and programmes will take into account the "legitimate” interests of persons belonging to minorities. Ironically, "legitimate” interests of minorities are frequently quashed by "more legitimate” national interests. Developmental burdens are often imposed on politically marginalised communities and legitimised in the name of national economic growth and prosperity. On the other hand, Article 5(2) calls upon development agencies, financial institutions, and others involved in international cooperation to plan and implement their programmes of cooperation and assistance in a way that pays attention to legitimate interests of persons belonging to minorities. To what extent this toothless provision is likely to have any deterrence on powerful financial institutions and their neoliberal economic agenda in post-colonial states is a different question.

One area where the Declaration is quite explicit is the right to effective participation, within the limits of existing laws, in national and regional level decisionmaking on issues concerning minorities.13 The need for effective participation of minorities was also enumerated in the OSCE Meeting of Experts on National Minorities in 1991, and also in a meeting of a group of independent experts in 1999.14 The Working Group on Minorities adopted a set of recommendations on the same issue at its fifth session in May 1999.15 As the Commentary on the Declaration notes, minority representation should be ensured beginning at the initial stages of decision-making, for it is of little use to involve minorities only at the final stages, when there is very little room for compromise.

In the case of indigenous peoples, especially when their interests in their territory are at stake due to large-scale development projects, the duty to obtain free, prior, and informed consent beyond mere consultation has been asserted frequently in the case law and international instalments on indigenous rights.16 In contrast, in applying Article 27 of the ICCPR, the Human Rights Committee had historically implied that mere consultation was sufficient for constituting effective participation.17 This was so until the case oí Angela Poma Poma v. Peru, in which it was concluded that "participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community”.18 However, this judgment also made explicit references to the indigenous character of the complainant. Therefore, whilst the right to consent may be persuasively argued in the case of indigenous peoples, international law jurisprudence offers little support for the requirement of such a right in the case of minority groups.

Therefore, the question arises as to whether the more robust international legal regime of rights for indigenous peoples under the ILO Convention 169 (1989) or the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) applies equally to minority groups.19 These two instruments offer a wide range of protections to indigenous peoples, especially against developmental atrocities affecting their lands and livelihood. For example, the ILO Convention stipulates that special measures should be taken ensuring: the safeguard of the persons, institutions, property, labour, cultures, and environment of indigenous and tribal peoples;20 the right to decide their own priorities for the development process;21 and the right to retain their own customs and institutions.22 Part II of the Convention includes a wide range of rights in relation to lands and the use, management, and conservation of natural resources pertaining to their lands.23 Likewise, the UNDRIP expanded the legal protection and safeguards for indigenous peoples by recognising their right to self-determination, which in practice implies an extensive right to autonomy.24 Article 32 substantiates this by declaring that indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories, and other resources.

While these protections can hardly eradicate the marginalisation and disenfranchisement of indigenous peoples within the pervasive neoliberal framework of the global economy, the focus of the international legal regime for indigenous peoples has undoubtedly, albeit gradually, shifted from “development” as a mode of modernisation and assimilation to the notion of “self-determined development”.25 Therefore, an extension of these rights to minority groups would potentially bring the latter under a much better legal protection in the face of harmful development projects.

Responding to the question about applying rights for indigenous peoples to minority groups, Eide unequivocally asserts that special rights designed for persons belonging to national or ethnic, linguistic, or religious minorities can also be claimed by persons belonging to indigenous peoples. But the rights of indigenous peoples under ILO Convention 169 or the UNDRIP can only be asserted by persons belonging to indigenous peoples or their representatives; members of non-indigenous minorities cannot assert the rights contained in that Convention.26 This is because, Eide argues, the specific rights of indigenous peoples contained in the above instiuments are significantly different from those in the Minority Rights Declaration (1992):

Whereas the Minority Declaration and other instiuments concerning persons belonging to minorities aim at ensuring a space for pluralism in togetherness, while ensuring equality and non-discrimination in the common domain, the instiuments concerning indigenous peoples are intended to allow for a high degree of autonomous development. Whereas the Minority Declaration places considerable emphasis on effective participation in the larger society of which the minority is a part [...], the provisions regarding indigenous peoples seek to allocate authority to these peoples so that they can make their own decisions.27

It needs to be noted, however, that universal human rights norms - as the general premise of both minority rights and the rights of indigenous peoples - are equally applicable to both groups. For example, the jurisprudence of both the African Commission on Human and Peoples’ Rights (African Commission), along with the African Court on Human and Peoples' Rights (ACtHPR), and the Inter-American Court of Human Rights (lACtHR), has repeatedly recognised

Indigenous peoples and ethnic minorities 293 indigenous customary systems of tenure over ancestral lands, alongside the common law and statutory framework governing land law.28 As a result, the state is obliged to recognise and protect indigenous land via delimitation, demarcation, and titling.29 A failure to do so was considered a violation of the right to nondiscrimination in Sawhoyamaxa Indigenous Community v. Paraguay.30 Similarly, in Maya v. Belize, it was noted that “one of the greatest manifestations” of racial discrimination against indigenous peoples was found in “the failure of state authorities to recognize indigenous customary forms of possession and use of lands”.31 One could argue then that based on the universal principles of equality and non-discrimination, the recognition of customary law should be extended to other groups, including minorities, who own or use lands in the same way.32 In many countries, indigenous peoples and minority groups share the system of governance, management, and customary land-use practices.33 The Human Rights Council has acknowledged that “systems of shared or collective land rights and customary land tenure and property rights”, in the context of minorities, should also be subject to strategies of protection.34

While relevant human rights provisions can potentially be interpreted in such ways to offer better protection to minority groups, the individualist premise of those rights - at the cost of group identity - is omnipresent. This diffusion of groups into individual right-holders also undermines the capacity of minorities to engage with and effectively participate in decision-making as groups. Unlike indigenous peoples, whose group identity is recognised and protected under corresponding international instruments, minorities do not enjoy such recognition or protection. Thus, even if relevant human rights provisions are interpreted with the best of intentions, certain key challenges will persist due to the inherent limitations of the liberal-individualist human rights regime in dealing with group identities. Pentassuglia, however, optimistically suggests that “international jurisprudence holds the promise of a wide and deeper (re-)assessment of minority issues within the human rights canon”.35 Whether or not this suggestion has the potential to materialise can be deduced to some extent by the reasoning in the existing jurisprudence on indigenous peoples but ultimately will require a purposively positive interpretation of the relevant instruments.

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