The legal status of Indigenous Peoples under International Law

Humankind is the result of millennia of migrations, which enabled our species to inhabit all continents and the very most of the planet. These contacts between different human groups create further cultural and technological, but they have also been the scenario of colonisation and severe human rights violations. In a time when globalisation blurs even further the lines of national identity, some populations stood firmly on their ancestral grounds, demanding recognition of their unique status by the institutions who, for so long, belittled their existence.

Although there is no authoritative definition under International Law, Indigenous Peoples can be identified as a varied human group living on all continents, united by long-standing localised traditions and distinct cultural and political characteristics.They have retained such practices despite the establishment of other populations in their territory (Office of the High Commissioner for Human Rights, s.d.). As stated by the United Nations Permanent Forum on Indigenous Issues, the belonging of an individual to an Indigenous group is rooted in the principle of self-determination of Indigenous Peoples, according to which they “identify themselves as Indigenous and (are) accepted as members by their community” (Drissi, 2023). The principle of self-determination poses conceptual problems with the idea of national sovereignty, but it has nevertheless been held as fundamentally trivial by the representatives of different Indigenous populations.

Indigenous People have faced the worst consequences of colonisation, in the worst cases, being decimated, having their land stolen and being confined into reserves with limited access to resources. As International Law came to be and eventually recognised the necessity of protecting human rights against abuse of State powers, it fell short of recognising the same rights to Indigenous Peoples. This caused them to be unable to enjoy political rights as collectives, as well as to be overshadowed by the State in the process of recognition of collective legal subjects under International Law (Åhrén, 2016). The effects of these shortcomings can be seen to this day, with Indigenous people being nearly three times as likely to live in extreme poverty and accounting for almost 19 percent of the extreme poor. They are also disproportionately subjected to the consequences of climate change, environmental degradation, high levels of poverty, poor access to education, health, and broader human rights violations (Office of the High Commissioner for Human Rights, s.d.).

It was not until the 1970s and 1980s that States started to recognise the essentially unique status of Indigenous Peoples and their vulnerabilities when dispossessed of their lands. Indigenous rights initially had a collective dimension. This set them aside from Minority rights, which are only individual in nature (Åhrén, 2016). The release of “Cobo Report” led to the establishment in 1982 of the UN Working Group on Indigenous Populations (WGIP) in 1982, a subsidiary group of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. The work of the WGIP has since been fundamental in laying the foundations of more comprehensive international legislation on Indigenous Rights, starting from the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) (Åhrén, 2016).

Ultimately adopted on 13th September 2007 by the UN General Assembly (UNGA), the UNDRIP is, to this day, the most comprehensive piece of international on protection of the rights of Indigenous Peoples (UN Department of Economic and Social Affairs - Social Inclusion, s.d.). It reflects, first and foremost, the right to self-determination (Article 3), as seen earlier. It also recognises a vast array of individual and collective rights, notably: the right to maintain and strengthen their distinct political, legal, social and cultural institutions while retaining their political rights towards the State (Article 5); the right not to be subjected to forced assimilation or destruction of their culture (Article 8); the right not to be forcibly removed from their lands or territories (Article 10); the right to be consulted by the State in affairs that may affect them (Article 19); the right to the conservation and protection of the environment (Article 29). It also reiterates how Indigenous People are recipients of Human Rights (United Nations Declaration on the Rights of Indigenous Peoples).

It is worth mentioning that the UNDRIP by itself is not legally binding, as other UNGA resolutions. However, many scholars (notably Barelli and Rehman) observed that many of its provisions stem from other formally legally binding international legal sources and customary international law. Other interpretative analyses concludedthat States, by adopting the UNDRIP, gave their political consent to the recognition of Indigenous Peoples as subjects of International Law, therefore recognising their rights (Åhrén, 2016).

It is also notable how the World Bank, in its Operational Policy on Indigenous Peoples, acknowledges the rights of Indigenous Peoples. It states that International Law recognises their rights and that it should not provide funding to projects on Indigenous land, unless there is “broad community support” (World Bank, 2005)(Åhrén, 2016).

In conclusion, Indigenous Peoples rights are internationally acknowledged as recipients of both Universal Human Rights and sui generis Indigenous Rights. This provides them with protection both on the individual and the collective level.However, the binding effect of the UNDRIP and other international Treaties on the matter should be clarified to give their recipients more legal certainty in the challenge of national authorities.

Bibliography

Office of the High Commissioner for Human Rights. (n.d.). About Indigenous Peoples and human rights. Retrieved from Office of the High Commissioner for Human Rights: https://www.ohchr.org/en/indigenous-peoples/about-indigenous-peoples-and-human-rights

Drissi, S. (2023, September 19). Indigenous Peoples and nature they protect. Retrieved from UN environment programme: https://www.unep.org/news-and-stories/story/indigenous-peoples-and-nature-they-protect

Åhrén, M. (2016). Indigenous Peoples' Status in the International Legal System. Oxford: Oxford University Press.

UN Department of Economic and Social Affairs - Social Inclusion. (n.d.). UN Department of Economic and Social Affairs - Social Inclusion. Retrieved from United Nations Declaration on the Rights of Indigenous Peoples: https://social.desa.un.org/issues/indigenous-peoples/united-nations-declaration-on-the-rights-of-indigenous-peoples

United Nations Declaration on the Rights of Indigenous Peoples. (n.d.). Retrieved from https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

World Bank. (2005, July). Operational Manual. Retrieved from OP 4.10 - Indigenous Peoples: https://thedocs.worldbank.org/en/doc/2e32d9beeec85a16da0bac98d14df191-0290012023/original/OP-4-10-Indigenous-Peoples.pdf