How does general international human rights law protect indigenous peoples? After all, the Universal Declaration of Human Rights (UDHR) remains silent on the issue. But the UDHR formed the fundament for the creation of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR), which share a common Article 1, which protects indigenous livelihoods.
Article 1 (2) ICCPR / ICESCR is a reminder of the right to self-determination of peoples and while there is some debate as to whether this is a subjective right of peoples in relation to states or merely a legal principle and if it also applies to indigenous peoples, Article 1 ICCPR / ICESCR is a reminder of the continued relevance of indigenous sovereignty. This essay looks at how international human rights law can be utilized to protect indigenous peoples from the practical human rights law perspective.
Table of Contents
1 International Covenant on Civil and Political Rights
2 Convention on the Elimination of All Forms of Racial Discrimination
3 European Convention on Human Rights
Objectives and Topics
This work examines the protection of indigenous peoples within the framework of international and regional human rights law, focusing specifically on the applicability of global instruments like the ICCPR and CERD, as well as the potential for utilizing the European Convention on Human Rights to defend indigenous interests.
- Analysis of the right to self-determination under the ICCPR in an indigenous context.
- Evaluation of the legal relevance of the UN Human Rights Committee’s General Comment 23.
- Examination of the effectiveness of the CERD and its General Recommendation 23.
- Discussion of indigenous rights within the European Court of Human Rights case law.
- Assessment of potential barriers to litigation, such as admissibility criteria and evidentiary challenges.
Excerpt from the Book
3 European Convention on Human Rights
And then there are of course the regional human rights instruments. Here I want to concentrate on the European Convention on Human Rights. While there is no functioning regional human rights system in the Asian-Pacific region and the role of indigenous rights in the African human rights system still needs a lot of work (although there is now an online manual on indigenous rights in the African human rights system as well as other literature), the Inter-American human rights system has had a large impact on indigenous human rights discourse. Even if you are only working in Europe, the case law of the Inter-American Court of Human Rights is something which you have to be familiar with. In fact, the European Court of Human Rights also makes reference to e.g. the American Convention on Human Rights: for example in the 2012 judgment in the case of Markin v. Russia, Judge Pinto de Albuquerque made reference to the 2004 report by the Inter-American Commission on Human Rights in the case of Maya Indigenous Communities of the Toledo District v. Belize but also to the Human Rights Committee’s case of Länsman and others v. Finland, also known as the second Länsman case. In Tatukus v. Lithuania he also made reference to the Inter-American Court of Human Rights’ decision in Yakye Axa Indigenous Community v. Paraguay. Not all judges are as likely as judge de Albuquerque but the European Court of Human Rights has exhibited some openness to other international documents, even though it only applies the Convention and the protocols thereto. Europeans working on indigenous issues cannot just look at Strasbourg ignore the case law from San Jose. The textbook by James Anaya has a section on this aspect, which provides a good starting point especially for readers who might not yet be familiar with the Inter-American human rights system.
Summary of Chapters
1 International Covenant on Civil and Political Rights: This chapter explores how Article 1 and Article 27 of the ICCPR provide a legal basis for protecting the livelihoods, self-determination, and cultural identity of indigenous peoples.
2 Convention on the Elimination of All Forms of Racial Discrimination: This section analyzes the role of the CERD and its General Recommendation 23, noting that while the instrument covers indigenous discrimination, its practical guidance is often weaker than that of the Human Rights Committee.
3 European Convention on Human Rights: This chapter assesses the underutilized potential of the ECHR for indigenous rights litigation, highlighting key case law and the challenges of admissibility for indigenous applicants.
Keywords
Indigenous Peoples, International Human Rights Law, ICCPR, Self-determination, Cultural Identity, European Convention on Human Rights, CERD, Litigants, Sovereignty, Indigenous Land Rights, Sámi, Minority Rights, Case Law, Admissibility, Legal Protection
Frequently Asked Questions
What is the core focus of this publication?
The publication focuses on how international and regional human rights instruments can be utilized to protect and defend the rights of indigenous peoples.
What are the central themes discussed in the text?
Key themes include the right to self-determination, the protection of cultural identity, land use rights, and the strategic use of international litigation mechanisms.
What is the primary objective of the research?
The primary objective is to evaluate the applicability of existing human rights law to indigenous issues and to identify how potential applicants can better utilize these frameworks.
Which scientific methods are primarily employed?
The author employs a legal research method, analyzing international treaties, UN General Comments, and relevant case law from various international and regional courts.
What topics are covered in the main body?
The main body covers the ICCPR, the CERD, and the European Convention on Human Rights, providing a detailed breakdown of how each instrument relates to indigenous sovereignty and community rights.
What characterize the keywords of this work?
The keywords reflect a focus on international legal frameworks, the specific status of indigenous groups, and the practical challenges of human rights litigation.
Why is the case of G. and E. v. Norway significant?
It was the first case before the Commission that dealt with indigenous rights in the proper sense, establishing that a "particular life style" rooted in indigenous membership could be protected under the right to private life.
How does the author view the role of the European Court of Human Rights?
The author views the ECHR as a potentially powerful but currently underutilized legal tool that requires better legal preparation from indigenous applicants regarding admissibility.
What is the main challenge for indigenous litigants mentioned in the text?
A significant challenge is the difficulty of providing evidence for traditional land use, especially when such claims reach back centuries without written records.
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- Stefan Kirchner (Autor:in), 2015, International Human Rights Law and Indigenous Peoples, München, GRIN Verlag, https://www.grin.com/document/313104
