Credit: Inter-American Court of Human Rights 

By: Medes Malaihollo

Introduction

Throughout 2024 and 2025, some remarkable legal developments have taken place as regards Indigenous rights in international law. Examples include recent views of the Human Rights Committee, Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child. But perhaps most noteworthy is recent judicial practice of the Inter-American Court of Human Rights (IACtHR) related to the right to self-determination of Indigenous peoples, and in particular the cases of Rama, Kriol and Bluefield v Nicaragua, Huilcamán Paillama v Chile, U’wa Indigenous People and its members v Colombia, Quilombolas Communities of Alcântara v Brazil and Pueblos Indígenas Tagaeri y Taromenane v. Ecuador.

Although these cases deserve to be reviewed in much more detail, the purpose of this short contribution is to raise awareness amongst the broader public, legal scholars and practitioners who are rather unfamiliar with recent IACtHR case law on the right to self-determination of Indigenous peoples. To this end, this blog post discusses three major themes that can be identified in relation to this foundational legal entitlement of Indigenous peoples in recent judicial practice of the IACtHR.

Participatory engagement

In Saramaka People v Suriname, the IACtHR already established an essential foundation for ‘effective participation’ of Indigenous peoples (see paras 133-137), but in Rama, Kriol and Bluefield v Nicaragua the the Court advanced matters a bit more by clarifying that consultations are closely related to the right to self-determination of Indigenous peoples (see para 230). In addition, the Court explained that consultations are an aspect of an Indigenous people’s participatory engagement within the framework of the right to self-determination (see para 233).

These assertions are not to be underestimated because the scope of participatory engagement as an aspect of the right to self-determination of Indigenous peoples in international law goes beyond consultations (see here). In that sense, self-determination is not to be downgraded to consultations. Self-determination of Indigenous peoples may also require state authorities to obtain an Indigenous people’s free, prior, and informed consent (FPIC) in certain circumstances. Concrete examples of such circumstances are the forced removal of an Indigenous people from their ancestral lands (see Article 10 UNDRIP and Article 16 ILO Convention No. 169), hazardous materials being stored in or disposed on the ancestral lands of an Indigenous people (Article 29(2) UNDRIP), and cases of ‘large-scale development or investment plans that would have a major impact within the territories of indigenous or tribal peoples’ (for the most recent expression of the IACtHR, see IACtHR Climate Emergency Advisory Opinion, para 608). For that matter, self-determination is more than only a procedural right for Indigenous peoples; it also concerns a substantive mechanism that ensures they have influence over the product of a decision-making process (for the argument that self-determination of peoples is a procedural right, see here; for the argument that self-determination of indigenous peoples is not merely a procedural right, see here).

That said, it is quite remarkable that the IACtHR did not argue along the lines of the obligation to obtain FPIC in a recent case about the forceful removal of an Indigenous people from their ancestral lands. In Quilombolas Communities of Alcântara v Brazil, the Court stayed rather close to its case law on consultations (see paras 167-187). This obligation concerns one of best efforts (see here), which functions as a default setting for participatory engagement under the right to self-determination of Indigenous peoples. However, the Court could have reasoned along the lines of Brazil’s obligation to obtain FPIC because the case was one of forceful removal from the ancestral lands (again, see Article 10 UNDRIP and Article 16 ILO Convention No. 169). Importantly, this is not a best efforts obligation, but an obligation of result (see also here).

Self-determination and freedom of expression

In Huilcamán Paillama v Chile (paras 252–255) and U’wa Indigenous People and its members v Colombia (paras 231-233), the IACtHR linked the right to self-determination of Indigenous peoples to the freedom of expression and freedom of assembly. Following the Committee on the Elimination on All Forms of Racial Discrimination (see in particular CERD General Recommendation 21, para 4), the Court asserted that Indigenous peoples have the right to freely determine their own destinies (Huilcamán Paillama v Chile, para 254; see also Rama, Kriol and Bluefield v Nicaragua, paras 124 and 127). In that sense, the IACtHR established that the right to self-determination of Indigenous peoples is exercised through their authorities or forms of organisation who should be able to express and clarify their opinions and positions on issues that are foreign to the Indigenous community and that impact them (Huilcamán Paillama v Chile, para 255; U’wa Indigenous People and its members v Colombia, para 233). Put differently, the succesful exercise of an Indigenous representative’s freedom of expression facilitates the effective participation of the Indigenous community in decision-making processes on matters affecting them. Without such facilitation, participatory engagement – as an aspect of the right to self-determination of an Indigenous people – would simply be hindered.

While the right to self-determination concerns a collective right, it is not uncommon to connect it to individual rights in the way the IACtHR does. The Special Rapporteur on the Rights of Indigenous Peoples and the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) have already emphasised the importance of Indigenous self-determination for the successful exercise of all collective and individual human rights to which Indigenous peoples and their members are entitled. Moreover, recent practice of the Human Rights Committee confirms the link between the right to self-determination of peoples and individual rights, especially with respect to minority rights protected under Article 27 of the International Covenant on Civil and Political Rights.

Indigenous peoples in voluntary isolation

Most remarkable is Pueblos Indígenas Tagaeri y Taromenane v. Ecuador. In this case, the IACtHR dealt with the rights of an Indigenous people in voluntary isolation for the very first time (see para 184). This was quite a challenge because one could wonder how ‘effective participation’ of an Indigenous people in voluntary isolation looks like. How can such community effectively participate in decision-making processes if the community is unreachable and not to be forced into contact?

The Court addressed this challenge by firstly recalling its earlier case law on the right to self-determination of Indigenous peoples and establishing that the right to self-determination of Indigenous peoples is a protected legal entitlement under the ACHR (paras 184-185). The Court subsequently framed the right to self-determination in the context of Indigenous peoples in voluntary isolation. Since self-determination is about a people expressing the free and genuine will on matters that significantly affect the people’s collective identity, an Indigenous people’s choice of no contact is a manifestation of their right to self-determination. In this regard, the Court highly engaged with earlier UN Guidelines on Indigenous peoples in voluntary isolation (see in particular paras 187-188, 192-193). In fact, the EMPRIP already prepared Draft Guidelines on the protection of Indigenous peoples in voluntary isolation in 2009. 

In Pueblos Indígenas Tagaeri y Taromenane v. Ecuador, the IACtHR explained that the situation of an Indigenous people in voluntary isolation requires that human rights obligations of states need to be understood in such context (para 189). In the case of voluntary isolation, a state needs to take that fundamental choice of an Indigenous people of no contact with the outside world seriously into consideration when making decisions that impact that community’s livelihoods. Since consultations stricto sensu are not possible in such situations, a state needs to be cautious and ensure that measures are proportional, i.e. taking into consideration the nature of the measures and the potential effect on that isolated Indigenous people’s livelihoods (para 194). Importantly, this establishes foundations for an understanding that an Indigenous people’s choice of no contact as a manifestation of their right to self-determination implies the rejection of external intervention instead of a vague vacuum that justifies intervention into their livelihoods. While the IACtHR was not explicit in saying that the principle of no contact equals an expressive articulation of no consent, future practice of the Court, UN human rights treaty bodies and states on the matter will be worthwhile to keep an eye on.

Concluding remarks

Advancing the right to self-determination of Indigenous peoples is of great importance in the twenty-first century, especially in times of climate change. Not only are Indigenous peoples vulnerable to and disproportionate impacted by the urgent and existential threat posed by climate change (see IACtHR Climate Emergency Advisory Opinion, para 605; ICJ Climate Change Advisory Opinion, paras 382, 384; Separate Opinion of Judge Charlesworth in Climate Change Advisory Opinion, para 17). They are also in a central position to protect climate systems. Their special and sacred relationship with their ancestral lands, the environment and the natural world is a key aspect of what makes them in essence Indigenous (see also here, here and here), and it is this relationship that is protected through the successful exercise of their right to self-determination. In this respect, recent judicial practice of the IACtHR is valuable as it has started to flesh out this foundational legal entitlement of Indigenous peoples increasingly now, thereby contributing to the existing and evolving law of self-determination.

Bio: 

Medes Malaihollo is a PhD candidate at the Department of Transboundary Legal Studies, University of Groningen. His research focusses on public international law in general, with a particular interest in due diligence obligations of states and the right to self-determination of indigenous peoples. Before starting with his PhD research, Medes worked as a junior lecturer in International Law at the University of Groningen. Between 2020-2023, he was the Publishing Director of the Groningen Journal of International Law. In 2024, he was a visiting researcher at the Arctic Centre, University of Lapland. His work has been published in, among others, the Netherlands International Law Review, the Leiden Journal of International Law and the Polish Review of International and European Law.