Minority Rights & Indigenous Peoples in International Law’: "The UN Declaration on the Rights of Indigenous People (2006)

Introduction

The rights of Minorities and indigenous peoples have received considerable attention from the International law and consequently from scholars and commentators writing on international law. As such, this topic provides good scope for a literature review.

As there are many strands and themes involved in the literature pertaining to this issue, this literature review is thematically organised to allow for a review of secondary literature and primary sources that are of relevance to this issue.

In particular, the areas of significance are rights of self-determination, land rights, right of preservation of language and culture, and these rights have received a substantial amount of attention in the literature. The starting point however, is defining minorities and indigenous people, which is also an important theme in the literature. The literature review accordingly starts with the theme of defining minorities and indigenous people. Then the literature review

Defining minorities and indigenous people

• Kevin Alan David MacDonald, “Indigenous People and Developmental Goals: A Global Snapshot”, in in Gillette H. Hall, Harry Anthony Patrinos (Eds.), Indigenous Peoples, Poverty, and Development (Cambridge: Cambridge University Press 2012)

The author says that defining indigenous people is one of the three elements that go to finding a global perspective on indigenous peoples’ development, the others being data availability and representability of the data. The author explains that defining indigeneity is essential for the purpose of empirical assessment of indigenous development because one needs to first understand whose development is being assessed. The author helps to clarify the regional conceptions of indigenous people in Africa, Asia, Latin America, Pacific and North America. The author has identified different

1. Kevin Alan David MacDonald, “Indigenous People and Developmental Goals: A Global Snapshot”, in in Gillette H. Hall, Harry Anthony Patrinos (Eds.), Indigenous Peoples, Poverty, and Development (Cambridge: Cambridge University Press 2012) 17.
2. Id, 18.

indigenous people of these regions and also provided an overview of their social and economic conditions.

• Jerome M Levi and Bjorn Maybury-Lewis, “Becoming Indigenous: Identity, Heterogeinity in a Global Movement”, in Gillette H. Hall, Harry Anthony Patrinos (Eds.), Indigenous Peoples, Poverty, and Development (Cambridge: Cambridge University Press 2012)

The authors provide an historical overview and background of the formation of international law interest in the identification and definition of indigeneity. The authors also discuss critically the indigenous rights movement and its culmination into the 2006 UN Declaration on the rights of indigenous people.

• Emilia Papoutsi, “Minorities under International Law: How protected they are?”, (2014) 2(1) Journal of Social Welfare and Human Rights 305.

The author uses international law and scholarly work to reassess the definition of minorities. The author also shows how there are now differences drawn between old and new minorities. The new minorities are created due to the movement of migrants to newer nations, where they are in minority.

The Right to Self-Determination, land, development and culture

• Siegfried Weissner, “Indigenous Self-determination, Culture and Land: A Reassessment in Light of the 2007 UN Declaration on the Rights of Indigenous People”, in Elvira Pulitano, Indigenous Rights in the Age of the UN Declaration (Cambridge: Cambridge University Press 2012)

The author is very critical of the colonial and post-colonial effects on the culture and land rights of the indigenous people. The author links these rights to the right of self-determination and argues that until the indigenous people have a control over their governance, they cannot take control of their land, of which they have been dispossessed over a period of time. Moreover, the author says that loss of land and the Western domination has led to the

1. Also discussed in Dieter Kugelman, “The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity”, in A. von Bogdandy and R. Wolfrum, (eds.), Max Planck Yearbook of United Nations Law, Volume 11, 233-263 (The Netherlands:Koninklijke Brill N.V. 2007).
2. Siegfried Weissner, “Indigenous Self-determination, Culture and Land: A Reassessment in Light of the 2007 UN Declaration on the Rights of Indigenous People”, in Elvira Pulitano, Indigenous Rights in the Age of the UN Declaration (Cambridge: Cambridge University Press 2012), 32.
3. Id., 33.

gradual extinction of indigenous languages, culture and way of life. The author reassesses these rights of the indigenous people in the light of the 2006 UN Declaration.

• David Kennedy, “Challenging Expert Rule: The Politics of Global Governance” (2007) 27 Sydney Journal of International Law 5-28, 17.

The author challenges the traditional notions of development in context of indigenous people. The traditional or rather Western notions of development are concentrated on globalisation of Western ideas and institutions. This is not necessary to the advantage of the indigenous communities of the world who may see such globalisation as a threat to their culture and languages, which may not survive in the face of Western domination.

• Patrick Macklem, “Minority Rights in International Law”, (2008) 6 (3-4) Int J Constitutional Law 531.

The author takes a different approach to minority rights protection justification and offers an alternative account of why minority rights possess international significance. The author does not use religion, culture, and language justifications to show why international law protects minority rights and rather uses notions of international distributive justice to justify such protection. The author asks the central question: “Why should international human rights law vest members of a minority community—either individually or collectively—with rights securing a measure of autonomy from the state in which they live?” While the author does not directly answer this question, he does use substantial amount of literature, case law and UN measures to show that minorities represent a unique group of ‘individuals’ in international law, as there is a tenuous relationship between minority rights and human rights, as the latter have universal value and minority rights are at times more specific to certain individuals or groups of people. That is the reason why most international conventions are ambivalent on the issue of minority rights.

• Dieter Kugelman, “The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity”, in A. von Bogdandy and R. Wolfrum,

1. Patrick Macklem, “Minority Rights in International Law”, (2008) 6 (3-4) Int J Constitutional Law 531, [531].
2. Id., 533.

• (eds.),Max Planck Yearbook of United Nations Law, Volume 11,. 233-263 (The Netherlands:Koninklijke Brill N.V. 2007)

This is a very extensive work involving the rights of minorities and indigenous people from the perspective of international law. There is more focus on the rights of minorities in this work. The author discusses the gaps in defining minorities in international law. The author also clarifies the differences between minorities and indigenous peoples as the latter may even be a majority in a given state. Special regard is given to the UN measures for the protection of rights of minorities.

International Law measures

• UN Declaration on Right of Indigenous People, 2006

This is the most significant international law response to indigenous people signed on 13th September 2007 by the UN General Assembly. The UNDRIP was adopted by an overwhelming majority of the General Assembly with 144 members voting in favour of the UNDRIP and only 4 members voting against it. It is noteworthy that the declaration was a result of over a decade of work done towards international consensus on the rights of indigenous people. The Declaration concerns the safeguarding of certain rights of indigenous people, such as the right against genocide, exploitation and forced assimilation, the right against calculated dispossession of the resources and involuntary removal from their lands as well as the right to safeguard their language, culture and religion.

• The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, proclaimed by the General Assembly in 1992

The Declaration provides that minorities possess rights to enjoy their own culture, to practice their own religion, and to use their own language; to participate in cultural, religious, social, economic, and public life; to participate

1. Siegfried Weissner, “Indigenous Self-determination, Culture and Land: A Reassessment in Light of the 2007 UN Declaration on the Rights of Indigenous People”, in Elvira Pulitano, Indigenous Rights in the Age of the UN Declaration (Cambridge: Cambridge University Press 2012) 31.

in decisions on the national and, where appropriate, regional level; and to associate with other members of their group and with persons belonging to other minorities.

• UN General Assembly Resolutions for indigenous people

UN Declaration on the Right to Development 1986 is relevant to indigenous and minority people and their rights. General Assembly Resolution on Rights of Indigenous peoples on 23 December 2015, underlines the need to intensify for the elimination of violence against indigenous peoples.

• World Conference on Indigenous Peoples, held in New York (22 and 23 September 2014)

The outcome document of the high-level plenary meeting of the General Assembly was the result of the outcome document and this reiterated the important and continuing role of the United Nations in promoting and protecting the rights of indigenous peoples

• The Framework Convention for the Protection of National Minorities of the Council of Europe

This is an extensive Convention under the aegis of the European Union and many of the substantive rights of minorities are provided under this Convention. The Convention makes it a duty for state parties to protect those who are minorities in their states.

Conclusion

The international law measures are involved in protecting the rights of minorities as well as indigenous persons. These measures define minorities and indigenous persons as well as provide the substantive rights of minorities and indigenous persons.

The secondary literature contains descriptive as well as critical analysis of the rights of minorities and indigenous persons. There are many themes that are seen in the literature, some of which have been covered under the literature review. Predominantly, the rights of self-determination, land and culture are extensively dealt with. This implies that these are some of the most important concerns with respect to minority and indigenous peoples rights.

1. A/Res/41/128 of 4th December 1986, Article 1.1.
2. A/RES/70/232

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Bibliography

• Kennedy D, “Challenging Expert Rule: The Politics of Global Governance” (2007) 27 Sydney Journal of International Law 5-28
• Kugelman D, “The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity”, in A. von Bogdandy and R. Wolfrum, (eds.),Max Planck Yearbook of United Nations Law, Volume 11,. 233-263 (The Netherlands:Koninklijke Brill N.V. 2007)
• Macklem P, “Minority Rights in International Law”, (2008) 6 (3-4) Int J Constitutional Law 531
• Levi JM and Maybury-Lewis B, “Becoming Indigenous: Identity, Heterogeinity in a Global Movement”, in Gillette H. Hall, Harry Anthony Patrinos (Eds.), Indigenous Peoples, Poverty, and Development (Cambridge: Cambridge University Press 2012)
• MacDonald KAD, “Indigenous People and Developmental Goals: A Global Snapshot”, in in Gillette H. Hall, Harry Anthony Patrinos (Eds.), Indigenous Peoples, Poverty, and Development (Cambridge: Cambridge University Press 2012)
• Papoutsi E, “Minorities under International Law: How protected they are?”, (2014) 2(1) Journal of Social Welfare and Human Rights 305.
• Papoutsi E, “Minorities under International Law: How protected they are?”, (2014) 2(1) Journal of Social Welfare and Human Rights 305.