As discussed in this dissertation218, historically, judicial discourse has contributed to the marginalization and decline of the majority of indigenous peoples around the world.
The doctrines of ‘discovery’, ‘terra nullius’, and ‘effective occupation’ as forms of
acquisition of property are only some examples of legal concepts that were used to justify the occupation of indigenous territories and the colonization of the populations and, on many occasions, even the enslavement, subjugation, and marginalization of those
populations. The decolonization movements and growth of new states in the international sphere also adopted legal concepts that accorded with the safeguard of their own interests.
So developed the idea of the ‘nation-state’, the right to self-determination identified with a strong idea of ‘territorial sovereignty’, and the preservation of colonial territorial borders based on the doctrine ofuti possidetis, without consideration of the cultural associations of their populations, and denying all existence and legal viability to the historical claims of indigenous peoples to their territories.219
This ‘classical’ state-centred approach dates back to the 18th century Swiss legal theorist Vattel, who supported the idea of a separate body of law concerned exclusively with nation-states and who averred that states are the legitimate ‘subjects’ of international law.220 Out of this approach developed the idea that all other socio-political groupings are merely considered ‘objects’ of international law. And accordingly, because states are the only players in this paradigm, only they can create international norms.221
216 See Article 15.2 of ILO Convention No. 169 and Articles 28 and 32.3 of the UN Declaration.
217 ILO Convention No. 169, Article 7.3.
218 See the article in this dissertation: Inherent Rights of Aboriginal Peoples in Canada – Reflections of the Debate in National and International Law.
219 Del Toro, M., I., ‘The Contribution of the Jurisprudence of the Inter-American Court of Human Rights to the Configuration of Collective Property Rights of Indigenous Peoples', Yale Law School, SELA Publications (2008), at 2-3, available at: <http://www.law.yale.edu/documents/pdf/sela/Del_Toro.pdf>
(visited 10 September 2008). See also Anaya, J., Indigenous Peoples in International Law, Oxford, 2nd ed., at 3. (2004).
220 Emmerich de Vattel: The Law of Nations or principles of the law of nature applied to the conduct and affairs of nations and sovereigns, from the French of Monsieur de Vattel, from the new edition, by Joseph Chitty, Philadelphia, 1999 (1883), available at: <http://www.constitution.org/vattel/vattel.htm> (visited 10 September 2008).
221 See Maggio, G., Biodiversity, Chapter 3, in L. Watters (ed.), Indigenous Peoples, the Environment and Law, Carolina Academic Press, Durham, North Carolina (2004), pp. 43-74, at 45.
There have been, however, alternative viewpoints to the idea that only nation-states are subjects in international law. Thomas Aquinas and the influential 16th century
Dominican theologian de Victoria acknowledged that non-state entities such as indigenous peoples are not mere objects, but possess rights independent of European monarchies.222 This view was not, however, acceptable to the majority of state governments interested in acquiring colonial territories, but, on the contrary, many areas inhabited by peoples not forming a nation from the European-Western perspective were considered to be terra nullius. This was the case, for instance, in Canada, as studied in this dissertation. However, regarding Canada, at the very beginning of colonization, European settlers first dealt with indigenous communities on a nation-to-nation basis and sought to secure their assistance as trading partners and military allies. As their power and influence in North America grew, they increasingly claimed rights of suzerainty over their Aboriginal allies while still respecting their internal sovereignty and territorial rights. Under British colonial rule, however, the authority of Aboriginal governments was gradually eroded.223
The 1975Western Sahara case partially eroded the principle ofterra nullius when the ICJ noted that at the time of its occupation by Spain in the 19th century, the region now known as the Western Sahara was inhabited by peoples who, although ‘nomadic, were socially and politically organized in tribes and under chiefs competent to represent them.’224
As also discussed in this dissertation, the ‘classical’ view of international law continues to be reflected in ideas regarding the sovereign equality of states, the duty of non-intervention on the part of states in the internal affairs of other states, and state consent to international obligations. This approach effectively excludes the direct and official participation of other types of actors who have expertise and concerns that could help make the international system more broad-based, democratic, fair, and responsive to concerns arising outside the ‘traditional’ scope of nation-states and national
governments.225 This dissertation points out the core deficiencies of the doctrine of state sovereignty and legal subjectivity that restricts the ability of indigenous peoples to participate in the creation of international law in their areas of interest such as environmental issues. This is the prevailing condition, albeit, on the other hand,
international law guarantees the effective participation of indigenous peoples as discussed in this dissertation and in the previous section of this synthesis.
Despite the deficiency, many positive developments have occurred during the last few decades regarding the legal status of indigenous peoples in international law. A famous early international attempt by indigenous peoples to get recognition of their legal status was the initiative of the Council of the Iroquois Confederacy in the 1920s. Deskaheh, the speaker of the council, led an attempt to have the League of Nations consider the
Iroquois’s long-standing dispute with Canada. Although Deskaheh got support among
222 On the Indians Lately Discovered (1532), Published lecture in Francisco de Victoria, De indis et de ivre belli relectiones (Classics of International Law Series, 1917 (translations by J. Bate based on Iaques Boyer ed., 1557; Alonso Munoz ed., 1565; and Johann G. Simon ed., 1696).
223 See the article in this dissertation: Inherent Rights of Aboriginal Peoples in Canada – Reflections of the Debate in National and International Law, pp. 160-161.
224 Western Sahara (Request for Advisory Opinion) 1975, International Court of Justice, paras. 75-83. Case summary available at: <http://www.icj-cij.org/idecisions/isummaries/isasummary 751016.htm> (visited 1 January 2009).
225 See Maggio, G. (2004), pp. 45-46.
some League members, the League ultimately rejected this attempt, taking the position that the Iroquois grievances were a domestic concern of Canada and therefore outside the League’s competency.226
As the Iroquois example shows, after the adoption of the state-centred approach to international law, matters concerning indigenous peoples have been seen as falling within the domestic issues of the states in which indigenous peoples live. The process of
‘domestication’ within the Canadian legal context has been discussed in this dissertation.227 In more recent years, however, benefiting from an international system in which assertions of domestic jurisdiction are less and less a barrier to international concern over issues of human rights, indigenous peoples have been successful in attracting significant attention to their demands at the international level.228 Starting in the 1960s, indigenous peoples began drawing increased attention to demands for their continued survival as distinct communities with historically based cultures, political institutions, and
entitlements to land. In the 1970s indigenous peoples enlarged their efforts internationally through international conferences and direct appeals to international intergovernmental institutions. 229
Starting in the late 1970, indigenous peoples’ representatives began appearing before UN human rights bodies in increasing numbers and with increasing frequency, basing their demands on generally applicable human rights principles. Indigenous peoples have
enhanced their access to these bodies as several organizations representative of indigenous groups have achieved official consultative status with the UN Economic and Social
Council, the parent body of the UN human rights apparatus. Indigenous peoples also have invoked procedures within regional human rights bodies, particularly those associated with the Organization of American States.230
In 1971, the Sub-Commission on Prevention of Discrimination and the Protection of Minorities appointed one of its members, Mr. Martinez Cobo, as Special Rapporteur to conduct a comprehensive study of discrimination against indigenous populations and to recommend national and international measures to eliminate such discrimination.231 The study, completed between 1981 and 1984, covers a wide range of issues such as
indigenous identity, culture, land and legal systems, health and medical care, housing, education and language. It concluded that indigenous peoples were facing discrimination in various fields due to the social conditions in which most indigenous peoples lived.232 The study was an important starting point for a wider discussion of the unequal position that indigenous peoples faced in society due to their specific cultural characteristics.
226 See Niezen, R., The Origins of Indigenism: Human Rights and the Politics of Identity, University of California Press (2003), pp. 31-36.
227 See also generally Gutiérrez Vega, P. ‘The Municipalization of the Legal Status of Indigenous Peoples by Modern (European) International Law’, in R. Kuppe and R. Potz (eds.),Law and Anthropology, International Yearbook for Legal Anthropology, Volume 12, Martinus Nijhoff Publishers (2005): 17-54.
228 See Anaya, J. (2004), at 57.
229 Ibid., pp. 56-57.
230 Ibid., at 57.
231 See ‘Study of the problem of discrimination against indigenous populations’, UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, by Special Rapporteur, Mr. Martinez Cobo, UN Doc.E/CN/4/Sub.2/1986/7(1986).
232 The conclusions, proposals and recommendations are contained in Vol. V of the study, UN Document E/CN.4/Sub.2/1986/7 Add.4.
In 1982, the Working Group on Indigenous Populations (WGIP) was established by the United Nations Economic and Social Council.233 Mrs. Erica-Irene Daes, Chairperson of the Working Group from 1983 to 1999, authored important studies which played a pivotal role in raising the issue of indigenous peoples’ special relationship to lands in the wider public discussion. She conducted studies on, for instance, the protection of the heritage of indigenous peoples234, on the relationship of indigenous peoples to their lands235, and a study of indigenous peoples’ permanent sovereignty over natural resources.236 Within the work of the Chairperson, it became acknowledged that affirmative protection was needed for indigenous peoples in order for them to carry on their special relationship with their lands and environments.
The WGIP is an organ of the Sub-Commission on the Promotion and Protection of Human Rights. The working group’s original mandate was to review developments concerning indigenous peoples and to work toward the development of corresponding international standards.237 However, through its policy of open participation in its annual sessions, the working group became an important arena for the dissemination of
information and exchange of views among indigenous peoples, governments,
non-governmental organizations, and others.238 The policy of open participation has thus acted as an important forum to strengthen the international legal status of indigenous peoples.
In 1985 the sub-commission approved the working group’s initiative to draft a universal declaration on the rights of indigenous people for adoption by the UN General Assembly.239 After many phases, in 1994 the sub-commission adopted the working group’s draft and submitted it to the UN Commission on Human Rights, which subsequently
established its own ad hoc working group to work on the declaration.240
Through the process of drafting a declaration, the sub-commission’s Working Group on Indigenous Populations engaged states, indigenous peoples and others in a broad multilateral dialogue on the specific content of norms concerning indigenous peoples and their rights. This was a very important step historically, since the working group provided an important means for indigenous peoples to promote, for the first time, their own
233 Economic and Social Council Resolution 1982/34, available at:
<http://ap.ohchr.org/documents/E/ECOSOC/resolutions/E-RES-1982-34.doc> (visited 4 November 2008).
234 See ECOSOC Decision 1992/256 (July 20, 1992) authorizing the appointment of Erica-Irene A. Daes as a special rapporteur to conduct a study on the ‘protection of the cultural and intellectual property of
indigenous people’.
235 UN Special Rapporteur, Mrs. Erica-Irene A. Daes, Sub-Commission on the Promotion and Protection of Human Rights, Indigenous peoples and their relationship to land, Final working paper, 2001,
E/CN.4/Sub.2/2001/21, paras. 12-13. The document is available at:
<http://www.unhchr.ch/huridocda/huridoca.nsf/AllSymbols/78D418C307FAA00BC1256A9900496F2B/$F ile/G0114179.doc?OpenElement> (visited 10 July 2007).
236 Daes, E-I. A., Final report of the Special Rapporteur: Indigenous peoples’ permanent sovereignty over natural resources, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Fifty-sixth session, Item 5 (b) of the provisional agenda, E/CN.4/Sub.2/2004/30, 13 July 2004.
237 Human Rights Commission Res. 1982/19 (Mar. 10, 1982); E.S.C. Res. 1982/34, May 7, 1982, U.N.
ESCOR, 1982, Supp. No. 1, at 26, UN Doc. E/1992/82 (1982), paras. 1-2.
238 Anaya, J. (2004), at 63.
239 Sub-Commission on Prevention of Discrimination and Protection of Minorities Res. 1985/22 (29 August 1985).
240 Commission on Human Rights, Resolution 1995/32 (3 March 1995).
conceptions of their rights within the international arena, enabling them to make proposals and comments.241 Eventually all the states of the Western Hemisphere came to participate in the working group discussion on the declaration.242
It should be mentioned that in 2007, the new Expert Mechanism on the Rights of Indigenous Peoples was created to replace and continue the work of the WGIP.243 The mandate of the Expert Mechanism is to provide its thematic expertise in the manner and form requested by the Human Rights Council. To this end, it will focus mainly on studies and research-based advice. In addition, the Expert Mechanism may also make proposals to the Council for consideration and approval within the scope of its work, as set out by the Council. The Expert Mechanism will also work in cooperation with the Permanent Forum on Indigenous Issues, the Forum that will be discussed shortly below.244
ILO Convention No. 169 Concerning Indigenous and Tribal Peoples (1989) has played an important role in the development of the legal status of indigenous peoples in international law. Despite not gaining recognition of indigenous peoples as peoples in international law, one important aim of ILO Convention No 169. was to establish the conditions for self-management of indigenous (and tribal) peoples. This means that indigenous peoples should have the opportunity and a real possibility to manage and control their lives and decide their own future.245
Difficult challenges related to the legal status of indigenous peoples in the
development of ILO Convention No. 169 arose concerning the debate on the use of the term ‘peoples’ to identify the beneficiaries of the Convention. Indigenous peoples were pressing for the use of the term ‘peoples’ over ‘populations’. State governments, however, resisted the use of the term ‘peoples’ because of its association with the term
‘self-determination’, which, in turn, has been associated with the right of secession.246 Working under a two-year deadline for completing the text, the negotiating committee agreed to the use of the term ‘peoples’ subject to a clarification that it was not intended to convey any implications under international law. The Committee felt that the ILO lacked competence to interpret Article I of the United Nations Charter247 and referred the question of self-determination to the Working Group and its parent bodies.248
Although ILO Convention No. 169 does not explicitly recognize the right of
indigenous peoples to self-determination, it does guarantee explicit rights for participation.
Article 6, which is the key article in the Convention, requires governments to establish
241 Anaya, J. (2004), pp. 63-64.
242 Anaya, J. (2004), at 64.
243 Human Rights Council Resolution 6/36. Expert Mechanism on the Rights of Indigenous Peoples. 6th Session, 14/12/2007, A/HRC/RES/6/36, available at:
<http://ap.ohchr.org/Documents/dpage_e.aspx?si=A/HRC/RES/6/36> (visited 20 July 2008).
244 See Office of the United Nations High Commissioner for Human Rights, Expert Mechanism on the Rights of Indigenous Peoples, mandate, available at:
<http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/mandate.htm> (visited 1 January 2009).
245 ILO: ‘ILO Convention on indigenous and tribal peoples, 1989 (No. 169) a manual’, International Labour Organization (2000), at 10.
246 See Anaya, J. (2004), at 59-60.
247 The Charter of the United Nations, adopted 24 October, 1 UNTS XVI.
248 Barsh, L. R., ‘Indigenous Peoples in the 1990’s: From Object to Subject of International Law?’Harvard Human Rights Journal 33 (1994), reprinted in L. Watters (ed.), Indigenous Peoples, the Environment and Law, Carolina Academic Press, North Carolina (2004), pp.15-42, at 23.
means enabling indigenous peoples to effectively participate at all levels of decision-making in elective and administrative bodies. It also requires governments to consult indigenous peoples, through adequate procedures and indigenous peoples’ representative institutions, whenever consideration is given to legislative or administrative measures which may affect such peoples directly. Article 7 furthermore recognises the right of indigenous peoples ‘to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use.’
ILO Convention No. 169 does recognize indigenous peoples’ collective rights to self-development, cultural and institutional integrity, lands and resources, and environmental security.249 Under the Convention, special measures of protection aimed at indigenous peoples must not be ‘contrary to the freely expressed wishes of the peoples concerned.’250
Moreover, national plans to implement the Convention must be developed with the participation of indigenous peoples and carried out in cooperation with them.251 The Convention thus acknowledges indigenous peoples as distinct political entities within states, entitled to negotiate with state authorities and to be consulted ‘in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or
consent to the proposed measures.’252 Indigenous peoples remain distinct as territorial and political entities over which states do not have unlimited power.253
ILO Convention No. 169 requires states to make good faith efforts to reach agreement with indigenous peoples’ own ‘representative institutions’ – that is, institutions chosen by indigenous peoples themselves rather than by the states – before taking actions that affect these peoples.254 The political rights of indigenous peoples, therefore, extend beyond the general human right to participate in the political life of the state guaranteed in Article 25 of the CCPR, which refers specifically to voting and candidacy for public office.
ILO Convention No. 169 is significant to the extent that it creates treaty obligations among ratifying states which are in line with current, more general trends in responding to indigenous peoples’ demands. The convention is also important as part of a larger body of developments that can be understood as giving rise to new customary international law.255 Since the 1970s, the demands of indigenous peoples have been addressed continuously in one way or another within the United Nations and other international normative discourse.
As is shown in this dissertation, it is now evident that states and other relevant actors have reached a certain new common ground concerning minimum standards that should govern behaviour toward indigenous peoples. It seems evident that these standards are already, in fact, guiding behaviour.256
249 See ibid. See also the article in this dissertation: Environmental Rights Protecting the Way of Life of Arctic Indigenous Peoples: ILO Convention No. 169 and the UN Draft Declaration on Indigenous Peoples.
250 Article 4.2.
251 Article 7.1.
252 Article 6.2.
253 Barsh, R. L. (2004), at 23.
254 Barsh, R. L., Indigenous Peoples, Chapter 36, in D. Bodansky, J. Brunnée and E. Hey (eds.) (2007), pp.
830-851, at 843.
255 Ibid., at 61.
256 Ibid.
Although ILO Convention No. 169 has been ratified by only twenty states257, its principles concerning self-development and cultural integrity have been recognized in other international legal processes, for instance, at the 1992 Rio Summit on Sustainable Development.258 The Summit adopted a Declaration on Environment and Development (the Rio Declaration), a program of action for achieving sustainable development (Agenda
Although ILO Convention No. 169 has been ratified by only twenty states257, its principles concerning self-development and cultural integrity have been recognized in other international legal processes, for instance, at the 1992 Rio Summit on Sustainable Development.258 The Summit adopted a Declaration on Environment and Development (the Rio Declaration), a program of action for achieving sustainable development (Agenda