Indigenous Peoples and International Law

Traditional international law played a major role in the dramatic history of the conquest of indigenous peoples, the usurpation of their sovereignty, and the dispossession of their lands, territories, and resources.5 The emerging international legal order in Europe became a powerful instrument in the hands of conquerors to dominate and subjugate indigenous peoples in the Americas.[1] [2] Since its inception, given the role played by the main European powers in its creation and the subordinate position of indigenous peoples and other non-Western countries and societies,[3] international law could be characterized as a hegemonic discourse and source of domination.[4] This situation continued unaltered until very recently, when contemporary international law progressively changed its approach to indigenous peoples. But it is quite remarkable that even in the first half of the twentieth century the West still believed itself to be entrusted with a ‘civilizing mission’ to save nonEuropean peoples from ignorance and backwardness.[5] In line with this approach, the first international treaty adopted by the International Labour Organization (ILO) in 1957 to deal specifically with indigenous issues largely retained an assimi- lationist paradigm.[6] [7] As stated in Article 2 of the Indigenous and Tribal Populations Convention (Convention No. 107, 1957), ‘Governments shall have the primary responsibility for developing co-ordinated and systematic action for the protection of the populations concerned and their progressive integration into the life of their respective countries’ (emphasis added).n

Post-Second World War international law recognized two core principles that have been of utmost importance to the struggle of indigenous peoples for recognition as distinct peoples in need of specific protection. The first principle relates to the purpose of the then-nascent United Nations of ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’.12 The second principle affirms the right of peoples to self-determination/3 a principle that paved the way for the second process of decolonization after the 1960s/4 These two principles served as the theoretical frame by means of which indigenous peoples articulated their main claims in the 1970s and 1980s/5 International law, particularly international human rights law, became a very powerful discursive resource for indigenous peoples to advance their demands both domestically and at international fora. In Rhiannon Morgan’s view, ‘the global indigenous movement is just one example of a movement that has grasped the transformative, dynamic potential lodged in the discourse of human rights, drawing on its manipulability and malleability to foster the reform of human rights’/6 At the same time, and as part of the process of empowering indigenous peoples, the United Nations has since the 1970s been increasingly receptive to claims by indigenous peoples/7 opening institutional spaces and avenues for their

  • 12 Art. 1.3 of the United Nations Charter (1945).
  • 13 Art. 1.2 of the United Nations Charter establishes as one of the purposes of the UN ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’ (emphasis added).
  • 14 As stated by the Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV), 14 Dec. 1960, ‘All 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.’ The conventional proclamation of the right of peoples to self-determination is to be found in common Art. 1 of the two human rights covenants adopted in 1966. The problem with this decolonization process is that, as Siegfried Wiessner explains, ‘the choice as to the political future of colonized peoples was not given to the individual peoples conquered, but to the inhabitants of territories colonized by European conquerors, within the borders drawn by the colonizers’. The colonial powers used the Roman legal category of uti possidetis to maintain the borders that were delineated by them at the Berlin Conference of 1884. S. Wiessner, ‘Indigenous Self-Determination, Culture, and Land: A Reassessment in Light of the 2007 UN Declaration on the Rights of Indigenous Peoples’, in Pulitano (2012): 7, 36. As a consequence of this interpretation of the right to self-determination limited to the colonial context, indigenous peoples were not considered as potential beneficiaries of such a right. One of the most difficult issues during the process of negotiation of the UNDRIP was precisely the incorporation of the right of indigenous peoples to self-determination. Art. 3 of the UNDRIP does ultimately recognizes this controversial right, a right that has to be interpreted in light ofArts 4 and 46.1 of the Declaration. As James Anaya has stressed, ‘reflecting the state of contemporary international law in relation to this principle as well as the demands of indigenous peoples themselves, the affirmation of self-determination in the Declaration is deemed compatible with the principle of territorial integrality and political unity of States’, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, S. James Anaya, UN Doc. A/HRC/ 9/9, 11 Aug. 2008, para. 37.
  • 15 On the so-called indigenous emergence during the 1970s and 1980s: A. Brysk, From Tribal Village to Global Village: Indian Rights and International Relations in Latin America (Stanford, Calif.: Stanford University Press, 2000). See also: S. Marti i Puig, ‘Emergencia indigena y polftica en America Latina tras la Decada de los Pueblos Indigenas’, in Laplasmacion politica de la diversidad: autonomiaypartici- pacion politica en America Latina, ed. F Gomez Isa and S. Ardanaz (Bilbao: Universidad de Deusto, 2011): 165-78.
  • 16 R. Morgan, Transforming Law and Institution: Indigenous Peoples, the United Nations and Human Rights (Farnham: Ashgate, 2011): 43.
  • 17 A very lucid analysis of the increasing involvement of the UN in indigenous issues by one of the key players within the Organization can be found in: A. Willemsen-Diaz, ‘How Indigenous Peoples’ Rights Reached the UN’, in Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples, ed. C. Charters and R. Stavenhagen (Copenhagen: IWGIA, 2009): 16-31.

participation and the advancement of their demands.18 Indigenous peoples used the United Nations as a mobilizing structure to increase visibility of their marginalized position and to pursue some strategic goals in terms of recognition and protec- tion.19 In a sense, the period saw a very promising process of decolonization of both international law and the United Nations.20 This process has allowed indigenous peoples to transform from mere victims to actors, and from objects of protection to subjects of rights,21 thus opening the door to their acquisition of some forms of international legal personality.22 The culmination of this legal and institutional development was the creation of the UN Permanent Forum on Indigenous Issues in 2000, a unique body in which states and indigenous representatives participate on an equal footing/3 and the adoption of the UNDRIP in 2007. As the Committee on the Rights of Indigenous Peoples of the International Law Association (ILA) has affirmed, all these developments demonstrate that ‘indigenous persons and peoples are back not only as fully entitled holders of individual human rights, but as collective actors with distinct rights and status under international law’/4

  • 18 A number of bodies were created to deal specifically with indigenous issues (Working Group on Indigenous Peoples; Working Group on a Draft Declaration on indigenous peoples’ rights; Permanent Forum on Indigenous Issues; Special Rapporteur on the Rights of Indigenous Peoples; and Expert Mechanism on the Rights of Indigenous Peoples). The General Assembly of the UN also proclaimed two consecutive UN Decades on Indigenous Peoples (1994—2003, and 2005—14). The UN Permanent Forum on Indigenous Issues has recently called for a Third International Decade of the World’s Indigenous Peoples. In its view, ‘over the course of the two Decades, we have seen some progress ... However, we need to ensure and reinvigorate momentum to genuinely implement the UN Declaration ... A Third Decade can provide a framework and consolidate clear milestones for the achievement of the UN Declaration .’ ‘A Third International Decade of the World’s Indigenous Peoples’, United Nations Permanent Forum on Indigenous Issues (Dalee Sambo Dorough, Chairperson, 7 Nov. 2014), .
  • 19 I. Bellier and M. Preaud, ‘Emerging Issues in Indigenous Rights: Transformative Effects of the Recognition of Indigenous Peoples’, The International Journal of Human Rights vol. 16 (2012): 474—88.
  • 20 Post-1945 international law and institutions have been used by the West (itself an imagined community) to construct and impose a new set of rational truths based on particular values, norms, and socio-political organizations that have been defined as universal. Post- colonial studies have demonstrated that international law and institutions, among many other structures of power, were used by the West to maintain its hierarchies and modes of domination. Indigenous peoples’ struggles have aimed to decolonize both the theory and practice of the ‘ideological-institutional complex’ known as international law. On this challenging processes see the illuminating essay by Sundhya Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press, 2011).
  • 21 F. Gomez Isa, ‘Pueblos indfgenas: de objeto de proteccion a sujetos de derechos’, in Vulnerabilidad y proteccion de los derechos humanos, ed. M. C. Barranco and C. Churruca (Valencia: Tirant lo Blanch, 2014): 167-85.
  • 22 D. S. Dorough, ‘The Significance of the Declaration on the Rights of Indigenous Peoples and Its Future Implementation’, in Charters and Stavenhagen (2009): 265. See also: A. Meijknecht,

Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law (Oxford: Intersentia, 2001).

  • 23 A description of the process that led to the creation of the PFII and its main functions in L. Garcia-Alix, The Permanent Forum on Indigenous Issues (Copenhagen: IWGIA, 2003).
  • 24 International Law Association, Rights of Indigenous Peoples, Report of the Hague Conference (2010): 2.

  • [1] P. Keal, European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness ofInternational Society (New York: Cambridge University Press, 2003).
  • [2] J. Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 2004,2nd edn). See also: A. Anghie, Imperialism, Sovereignty and the Making of International Law(Cambridge: Cambridge University Press, 2004).
  • [3] E. Pulitano, ‘Indigenous Rights and International Law: An Introduction’, in Indigenous Rightsin the Age of the UN Declaration, ed. E. Pulitano (Cambridge: Cambridge University Press, 2012): 4.
  • [4] B. Rajagopal, International Law from Below: Development, Social Movements and Third WorldResistance (Cambridge: Cambridge University Press, 2003).
  • [5] This is the essence of some provisions found in the Covenant of the League of Nations (1919), the constitutive treaty of the first international organization. According to Art. 22, a provision that hasto be read in a colonial context, ‘to those colonies and territories which as a consequence of the latewar have ceased to be under the sovereignty of the States which formerly governed them and which areinhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modernworld, there should be applied the principle that the well-being and development of such peoples forma sacred trust of civilization (emphasis added).
  • [6] P. Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University Press,2002): 329—33; J. M. Salgado, Convenio 169 de la OITsobre Pueblos Indigenas (Neuquen: UniversidadNacional del Comahue, 2006): 29—30.
  • [7] Besides, ILO Convention No. 107 refers to indigenous ‘populations’ rather than peoples. Therecognition as true peoples and nations is one of the main claims of the global indigenous movement.
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