Credits: Fredox Carvalho, https://www.pexels.com/
By Medes Malaihollo
Indigenous peoples represent around 5% of the world’s population, while protecting about 80% of global diversity. At the same time, they continue to be marginalised, belong to the poorest groups in society, and have experienced a history of dispossession. The protection of their human rights is therefore of utmost importance.
In the light of celebrating 75 years of the Universal Declaration of Human Rights (UDHR), this blog contribution submits that this document and its relevance on the rights of Indigenous peoples should neither be underestimated nor forgotten. Although the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is usually acknowledged as one of the most important legal instruments for Indigenous peoples, this does not mean that the UDHR is irrelevant for them.
To show this, this post will firstly present an overview of the history of international law towards communities described as Indigenous. It shows how Indigenous peoples were excluded from international law. Subsequently, the post will address the fertile ground that was created by the UDHR halfway through the 20th century. This has led to the adoption of many human rights treaties and created a movement of social forces that, in turn, have led to the contemporary legal framework on the rights of Indigenous peoples in international human rights law. Finally, the post will conclude by presenting some final remarks and reflecting on the future.
History and Eurocentric biases
Historically, most doctrines on traditional international law contained Eurocentric biases towards Indigenous communities. One example is Francisco de Vitoria, who wrote about Indians in the Western hemisphere at the very beginnings of European colonial expansion into the New World. He held that Indigenous peoples could be considered as autonomous entities in some way but that Spanish authority over Indigenous lands could be legitimately assumed for Indigenous peoples’ own benefit.
Another example that was negative towards Indigenous peoples can be found in the work of Emmerich de Vattel. His work was foundational for contemporary international law as he articulated the foundation for the doctrine of state sovereignty. For Indigenous peoples, however, the problem was that to enjoy rights as distinct communities under the law of nations, such community would have to be regarded as a state. This became a serious obstacle for Indigenous peoples, as the idea of a state was based on European models of political and social organisation. Most Indigenous communities, however, were (and still are) organised in a different manner: they are primarily based on tribal or kinship ties and descent. A good example concerns the Māori in Aotearoa New Zealand, whose social structure is centred around the principle of whakapapa.
In the late 19th century, the positivist school legitimised the categorical exclusion of Indigenous peoples from international law. Perhaps most famously is John Westlake, who provided one of the most well-known premises for such exclusion of Indigenous peoples. He viewed the ‘international society’ as being limited to ‘civilised’ and, according to him, humanity would be either ‘civilised’ or ‘uncivilised’. Without a doubt, the European-style government and lifestyle were civilised in his view, and in that sense, he effectively admitted that international law was an instrument of the powerful coloniser. Not being among the ‘civilised’ and powerful forces of colonisation, Indigenous peoples could not look to international law as their interests and rights had simply no place in the discussion here.
Halfway the 20th century, international law pivoted into a different direction. After the international community experienced two world wars, there have been advancements in the structure of global organisation and changes in normative assumptions. Late 19th and early 20th century state-centered positivism was replaced by growing concerns of international peace, collective security and human rights, and in that that sense international law entered a phase of humanisation. This new phase of international law does not exclude Indigenous peoples and, as we will see, the UDHR played a noteworthy role here.
UDHR: creating fertile ground
In the history of human rights, the UDHR is often considered a turning point, as it laid the groundwork for the contemporary legal framework of international human rights law. But the document does not refer to the rights of Indigenous peoples. What should not be underestimated, however, is that the UDHR lies at the foundation of the humanisation process of international law and its expansion.
Part of this expansion are the many UN human rights treaties, which are extremely relevant for Indigenous peoples. For instance, Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) refer to the right to self-determination of peoples. Moreover, the ICCPR has become particularly relevant for Indigenous peoples, as it contains a specific provision on the rights of persons belonging to a minority: Article 27 ICCPR. This provision protects the rights of members of a minority. For Indigenous peoples this is relevant as they often form minorities in states. Hence, Article 27 has opened the door for individual complaint procedures at the Human Rights Committee (HRC) by members of an Indigenous community. Some examples of cases where persons belonging to an Indigenous people started such a complaint procedure under Article 27 ICCPR are the Poma Poma case, the Tiina Sanila-Aikio case, the Käkkäläjärvi et al case, the Billy et al case and the recent Wunna Nyiyaparli case.
Other relevant human rights treaties are the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities (CRPD). In particular, the General Recommendations of the treaty bodies of these treaties are of particular importance as they show the vulnerability of Indigenous peoples. For example, in General Recommendation No. 23, the Committee on the Elimination of Racial Discrimination pays special attention to Indigenous people, as Indigenous peoples have been subjected to racial discrimination. The assimilation policies towards Aboriginals and Torres Strait Islanders, and the Sámi are only but a few examples. Based on this, it is not so difficult to understand that the Committee calls state parties to ‘ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on their indigenous origin or identity’.
We could stop here and consider that the role of the UDHR to the rights of Indigenous peoples in international law is mainly limited to the establishment of human rights treaties which by now protect them. But there is more. The adoption and entry into force of all these relevant human rights treaties led to a momentum of furthering community values and humanising international law, and the Indigenous movement made use of this. Although Indigenous participation on the international level already began within the League of Nations in the beginning of the 20th century, Indigenous peoples started to draw serious attention to demands for their survival internationally in the 1970s. In particular, the 1977 International Non-Governmental Organization Conference on Discrimination against Indigenous Populations in the Americas can be seen as a major development as it established the foundations for coordination of communication and formulation of demands by many Indigenous peoples around the world. Their mobilisation based on the language of human rights eventually resulted in the drafting and negotiation of the UNDRIP, which was finally adopted by the United Nations General Assembly in 2007.
Final remarks and future
Much has happened since the adoption of the UDHR. While international law historically excluded Indigenous peoples, the UDHR provided fertile ground for significant advancements in terms of human risghts, but it also led to a momentum for social forces to mobilise internationally. One could go so far as to argue that the contemporary international legal framework on the rights of Indigenous peoples would not have existed if it was not for the adoption of the UDHR.
As a final remark, one may wonder what happened to the Eurocentric bias. Arguably, some aspects of the contemporary framework on the rights of Indigenous peoples in international law are still based on Eurocentric perspectives. Take for example the matter of due diligence obligations in international human rights law. Without a doubt, these are on the rise in international human rights law, and also in the context of the rights of Indigenous peoples, but generally its roots remain heavily Eurocentric in nature. At the same time, due diligence is no stranger to Indigenous peoples. It follows that a culturally appropriate approach towards the interpretation and application of these obligations is needed to make the legal framework legitimate. In the end, the legal framework on the rights of Indigenous peoples should be further developed in such a way. That requires a bottom-up approach, listening to Indigenous peoples, trying to understand them, and taking them seriously.
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.