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View Wishlist. Our Awards Booktopia's Charities. There have been eclectic interpretations of human rights conventions which protect certain minority traditions, as in the jurisprudence of the European Court of Human Rights regarding the Roma, and there have been specific treaties, albeit not widely ratified, which protect indigenous peoples, such as ILO Convention No.
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Cultural preservation and flourishing is thus at the root of the claims as recognized by the states; this goal, not primarily political or economic objectives, inspires the positive law guarantees. In this broad sense, all the rights of indigenous peoples are cultural rights, and any interpretation of these rights, whether in UNDRIP or other instruments and prescriptions recognizing rights of indigenous peoples, ought to keep this telos in mind.
The UN Declaration on the Rights of Indigenous Peoples is the most comprehensive answer yet to the demands of indigenous peoples. Its effect under positive international law, however, merits further scrutiny. Though not legally binding per se , a declaration may be or become binding to the extent that its various provisions are backed up by conforming state practice and opinio juris. As standard of evaluation in this review, besides treaties the countries monitored are parties to, the Council uses the Universal Declaration of Human Rights.
Similarly, in August , Professor S. As to the content of UNDRIP, as stated above, the effective protection of indigenous culture is key to its understanding. This fundamental policy goal undergirds, in particular, the novel prohibition of ethnocide against indigenous peoples Article 8 1 — going beyond the prohibition of genocide against them, as enunciated in Article 7 2 , 47 the prohibition of their forced removal and relocation Article 10 , their right to practise and revitalize their cultural traditions and customs, including the right to maintain, protect, and develop past, present, and future manifestations of such cultures Article 11 , including the right to manifest, practise, develop, and teach their spiritual and religious traditions, customs, and ceremonies, as well as the restitution and repatriation of ceremonial objects and human remains Article An indigenous people's language is central to its culture — an ever more important issue in view of the accelerating threat that those languages will vanish and the need for this alarming downward spiral to be brought to a halt.
The key treaty provision supporting UNDRIP's rights to culture is Article 27 of the International Covenant on Civil and Political Rights ICCPR : In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
These formulations reflect the desire of important nation-states to protect culture through individual rights of members of the group rather than collective rights of the groups themselves. One of the other legal issues has been whether Article 27 requires positive measures to be taken to protect a culture. In its General Comment No.
That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.
It has also been argued that the establishment and development of indigenous cultural institutions and systems that is, indigenous cultural autonomy is properly located within the concept of collective cultural rights addressed by provisions such as Article 27, and not within the sphere of self-determination addressed by Article 1 of the ICCPR, for example — a concept referred to as essentially belonging to the political, or power, domain.
More importantly, their beliefs make remaining at that place a compelling dictate of faith. The struggle of indigenous peoples led to a treaty which recognized the rights of groups, particularly with respect to resources, as formulated in the ILO Convention No. In addition, global comparative research on state practice and opinio juris over a period of five years in the late s reached certain conclusions about the content of newly formed customary international law regarding the rights and status of indigenous peoples.
The worldwide indigenous renascence had led to significant changes in constitutions, statutes, regulations, case law, and other authoritative and controlling statements and practices of states which had substantial indigenous populations. Indigenous people achieved this dramatic victory through several means: a peace treaty in Guatemala, constitutional and statutory changes in countries such as Brazil, 83 and modifications of the common law in Australia and other states. Indigenous culture, language, and tradition, to the extent that they have survived, are increasingly inculcated and celebrated.
This now very widespread state practice and opinio juris regarding the legal treatment of indigenous peoples allowed the following conclusion in First, indigenous peoples are entitled to maintain and develop their distinct cultural identity, their spirituality, their language, and their traditional ways of life. Second, they hold the right to political, economic and social self-determination, including a wide range of autonomy and the maintenance and strengthening of their own system of justice.
Third, indigenous peoples have a right to demarcation, ownership, development, control and use of the lands they have traditionally owned or otherwise occupied and used. Fourth, governments are to honor and faithfully observe their treaty commitments to indigenous nations. The Inter-American Commission on Human Rights made the key step from the global research effort to a practical application of those conclusions to the international legal status of indigenous peoples.
Referring to this study and the opinions of other international legal scholars to argue for a new principle of customary international law, 86 the Inter-American Commission submitted the case of an indigenous group in the rainforest of Nicaragua to the Inter-American Court of Human Rights.
The tribunal, in its celebrated Awas Tingni judgment of 31 August , 87 affirmed the existence of an indigenous people's collective right to its land. It stated: Through an evolutionary interpretation of international instruments for the protection of human rights, taking into account applicable norms of interpretation and pursuant to article 29 b of the Convention — which precludes a restrictive interpretation of rights —, it is the opinion of this Court that article 21 of the Convention protects the right to property in a sense which includes, among others, the rights of members of the indigenous communities within the framework of communal property, which is also recognized by the Constitution of Nicaragua.
Given the characteristics of the instant case, some specifications are required on the concept of property in indigenous communities. Among indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival.
For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations. Other decisions in the same vein followed, including a recent decision involving Suriname. Still, such a radical re-interpretation of the treaty can only be based on a significant shift in the normative expectations of the states. It is most conceivable that the evidence for such a shift is found in the same material that has been adduced to prove customary international law: pertinent state practice and opinio juris.
It is no surprise that courts not bound by such jurisdictional restraints clearly express their legal opinion. On 18 October , Chief Justice A. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. There are also rights to the improvement of their social and economic conditions Articles 17, 21, 22, and 24 ; rights to development Article 23 and international cooperation Articles 36, 39, 41, and 42 ; treaty rights Article 37 ; as well as certain rights to redress and reparations e.
This language is best construed as referring to such human rights standards as have achieved the status of customary international law. These principles are intended to serve as an interpretative framework of UNDRIP and not as a substantive limit to its rights. Over the last half-century, the legal status of indigenous peoples around the world has significantly improved. Substantial challenges, though, remain, particularly in the areas of enforcement and implementation. In sum, the state of indigenous peoples worldwide and pertinent recommendations are as follows:. Indigenous peoples are vulnerable organic groups with a special relationship to their ancestral lands.
The international legal regime that is emerging or has emerged to ensure their protection and flourishing is a tailor-made response to their needs and aspirations as they articulate them themselves. Its policy basis, as internationally agreed upon, is the goal of cultural diversity — motivated variously by the respect for the autonomy of a radically different way of life or the general public's enjoyment of its artistic products or the learning of lessons from it for dealing with nature and life in general.
This guiding light of safeguarding the cultures of indigenous peoples has led to prescriptions which not only protect against physical and legal encroachments upon the people, their languages, and rituals, as well as the lands inextricably linked to their traditional ways of life; they also mandate governmental efforts affirmatively to foster the education of indigenous people in their native tongue, the inculcation of their culture in state media, and the development of media of their own to encourage the flourishing of their cultural heritage.
For this goal of addressing the threat to indigenous communities to work, both individual and collective rights are needed. As explained above, the individual cannot live without the community he or she is an essential part of, and the community cannot survive without its individual members; both influence each other. Rights of both the community and its individual members thus constitute the proper legal response.
The traditional dichotomy of individual and collective rights, with a wary eye on the latter, needs to be overcome to ensure the cultural survival of threatened and vanishing communities and traditions. In its place, an order of human dignity with specific functional rules needs to be established which works to allow indigenous peoples to survive and to flourish.
To that end, it makes sense to define flourishing, with policy-oriented jurisprudence, as the maximization of access by all to all things humans value — here, within the indigenous group and beyond. One key value here is rectitude, as the law of human relations within the indigenous group and with the living and non-living resources of the people has been determined by traditions from time immemorial; another one is affection, the bond of family and ethnic community.
Misunderstandings have arisen regarding the claims of indigenous peoples, particularly those to land and natural resources as well as those to self-determination.
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Cultural rights thus include not only rights to culture narrowly conceived, i. As their traditional lands are critical to the survival of the culture of indigenous peoples, the legal status of these properties ought to reflect this essential purpose. As the purpose of individual property law protections has been redefined from the maximization of economic benefits to the flourishing of humans 94 beyond the accumulation of wealth, the protection of indigenous cultures through collective property rights has to be guided by similar criteria of the blossoming of peoples.
The management of indigenous property rights, properly understood, would thus be guided by the culture of the people holding them, dynamic as this concept is. This would, in some cases, as in the US in the absence of formal ownership rights which are often held by the federal government, mean a right to use coupled with an obligation of stewardship toward the resource, for the benefit of future generations of the community and for the planet. Even then, the Court trusts in the use of this collectively held land to the benefit of the community long-term.
Indigenous self-determination also is best understood from its cultural foundation. As Vine Deloria Jr. The indigenous community should govern itself, in order to continue the life of its culture and its members and have it flourish. This would inform the exercise of its authority and control. The structures of decision making also could be tied to the culture, as they would sanction the authority and control of, say, traditional elders without the need of periodic democratic reaffirmation, by ballot, of their leadership role.
As part of a global community, though, indigenous self-government would still be bound, as to the substance of their decisions, by the outer limits any sovereign experiences, i. Ultimately, it is up to each indigenous community, and its members, to decide whether they wish to continue their inherited ways of life, modify, or abandon them. Governments should not create living museums of peoples.
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As culture is in constant flux, the only recommendation would be that such changes, by both indigenous communities and individuals, be voluntary and informed by knowledge about the various alternatives available, as well as the provision of government aid to support the option of living the traditional ways of life on one's traditional lands. Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide.
Sign In or Create an Account. Sign In. Advanced Search. Article Navigation. Close mobile search navigation Article Navigation. Volume Article Contents. Oxford Academic. Google Scholar. Cite Citation. Permissions Icon Permissions. Abstract The novel international legal regime of the rights and status of indigenous peoples has emerged in direct response to the concerted efforts and demands of indigenous communities regarding the survival and the flourishing of their distinct cultures. Francioni and M. Scheinin eds , Cultural Human Rights , at 1, 6—7.
On the impact of colonization on indigenous peoples see R. Berger, A Long and Terrible Shadow. White Values and Native Rights in the Americas — Eide et al. The natural rights theories of Locke and Rousseau as well as Kant's ethical axioms built around the concept of human dignity are generally seen as the philosophical backdrop to these conceptions. The first declarations of rights in positive law, i.
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That is also true for the first international such statement, i. A Liberal Approach to Multiculturalism , at See, e. Morris, : G. Strauss, Donne, Meditations , at Dallmayr ed. Kymlicka, Liberalism, Community, and Culture , at But so also do communities make choices and have values.
Why not then treat communities as fundamental units of value? Alfredsson and P. Meyer and B.
A Global History of Indigenous Peoples: Struggle and Survival by Kenneth S. Coates
Scheinin, and J. Lasswell and A. Kaplan, Power and Society ; H. Lasswell and M. McDougal, Jurisprudence for a Free Society. Studies in Law, Science and Policy , at ff. See also D. Kretzmer and E. For other country situations see Wiessner, supra note 22, at 60— See also R.