analysisBy Dinah Shelton
Dinah Shelton of the Inter-American Human Rights Commission examines how the rights of indigenous peoples are protected.
Protecting indigenous peoples often conflicts with modern ideas of 'progress'. The application of individual human rights through equal treatment ignores the very real differences between indigenous peoples and other minorities; these groups had pre-existing sovereignty and signed treaties to govern their relations with the outside world, but are no longer recognised as independent.
This article will look at attempts to safeguard their rights in international law through three separate fora: international instruments, the jurisprudence of the African Commission, and the Inter-American Court.
I - THE INTERNATIONAL SPHERE
The International Labour Organisation (ILO) and the United Nations (UN) have tried to bring indigenous peoples under the aegis of international law. A look at the evolution of definitions of ILO conventions 107 and 169 and the UN Declaration on the Rights of Indigenous Peoples reveals much about their unique character and needs.
i) ILO Convention No. 107
Produced in 1957, the ILO Convention No. 107 was the dominant paradigm for interpreting indigenous peoples' rights for nearly 30 years. Its sentiment can be surmised from Article 2(1):
"Governments shall have the primary responsibility for developing co-ordinated and systematic action for the protection of the populations concerned and their progressive integration into the life of their respective countries."
While protection is in focus, its orientation is nonetheless harmful. It advocates a top-down approach aimed at integration - reminiscent of the paternalism that obscured feminist legal issues for so long - but this ignores the reality that groups of indigenous people with a history of being violently displaced want to live autonomously. The priority for these groups remained the ability to control their own social and economic conditions.
Many of the freedoms granted are immediately qualified by the needs of the nation state. While Articles 5 offers the prospect of "seeking collaboration" and "full development of their own initiative", Articles 7(2) and 13(1) show that this restricted by their compatibility "with the national legal system or the objectives of integration programmes" and as long as they "do not hinder their economic and social development".
The important issue of land rights was based along similar parameters. Allowing recognition of the ownership of traditional lands in Article 11 is nullified by Article 12(1)'s clause on "the interest of national economic development".
ii) ILO Convention No. 169
The newer ILO Convention No. 169 and the 2007 UN Declaration on the Rights of Indigenous Peoples explicitly move away from such earlier approaches and emphasise the unique land and resource rights of indigenous peoples together with their right to autonomy and preservation of their culture.
The preamble to ILO Convention No. 169 states its intention to remove "the assimilationist orientation of the earlier standards". Article 1 defines tribal and indigenous peoples as peoples residing in independent countries, and whose social, cultural and economic conditions and customs distinguish them from other national groups. Article 1(2) includes self-identification as a criterion, which shows sensitivity to the diversity of indigenous peoples.
Article 7, in particular, embodies the move to recognising autonomy:
"The peoples concerned shall have the right 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, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly."
A past focus on mere collaboration has changed to direct participation in national development. However, in some ways, it is still lacking. Article 13 affirms respect for "the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands".
These clauses and reformulations represent a positive step forward. However, with more than 100 amendments to the original draft it ultimately reflects a compromise between diverging interests. The inclusion of the word "peoples" in the draft was a cause for concern for many state representatives and was eventually only included through the addition of Article 1(3):
"The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law."
This means that the sought after right to self-determination only has internal, as opposed to external effects for indigenous peoples. Like so many rights in international law, there remains a gap between rights enshrined in a draft document and tangible gains. To date, the Convention has only been ratified by 20 states.
iii) UN Declaration on the Rights of Indigenous Peoples
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which took over two decades to draft, was drafted with the help of representatives of indigenous groups. The text itself is much less prescriptive and unlike other documents does not rob them of their agency.
Its positives will be brought out in the remainder of the article; however for now, it facilitates a discussion of two important operations of international law: a) recognising collective rights and b) the use of soft law.
The evolution of the ILO Conventions and the UNDRIP shows the difficulty international law has in recognising collective rights. Basic human rights are based on conceptions of the individual as the bearer of civil and political rights, as an economic agent and social actor. Collective rights remain outside the nucleus of human rights discourse - this reveals the pursuit of human rights based on Western philosophies.
UNDRIP shows the advantages and disadvantages of soft law. UNDRIP is a declaration, which means is non-binding and soft law. However, the relatively low number of ratifications to ILO instruments shows that a binding, hard law agreement was highly improbable. Soft law can be used to fill a gap where hard law looks unlikely, and it generally takes much less time to enact than treaties or conventions. The UNDRIP was adopted in 2007 with 144 states voting in its favour. If adhered to, there remains the possibility that it could become part of customary international law. In the 2007 Maya village v. Belize case, Chief Justice Conteh said of UNDRIP:
"this Declaration, embodying as it does, general principles of international law relating to IP and their lands and resources, is of such force that the defendants, representing the government of Belize, will not disregard it."
The Declaration is undoubtedly a positive step forward in recognising the rights of indigenous peoples. Nevertheless, it is only a first step and the status of the Declaration as a customary principle of international law is yet to be properly established. In this regard, the most progressive and innovative approaches to the rights of indigenous peoples have occurred through the jurisprudence of regional human rights bodies.
II - AFRICAN CASES
In February 2010, the African Commission on Human and Peoples Rights decided a complaint concerning the ancestral land rights of the Endorois indigenous community of Kenya. The complaint alleged that the evictions severed the Endorois' spiritual, cultural and economic ties to their lands in violation of national law, Kenyan Constitutional provisions, and rights guaranteed in the African Charter, including the right to property, the right to free disposition of natural resources, the right to religion, the right to cultural life and the right to development.
The applicants, the Center for Minority Rights Development and Minority Rights Group International on behalf of the Endorois Welfare Council, invoked numerous rights in the 1981 African Charter on Human and Peoples' Rights. In assessing the claims presented, the African Commission interpreted the Charter in the light of general human rights law, relying in part on the 1997 United Nations Declaration on the Rights of Indigenous Peoples and other relevant UN texts, but also utilising the innovative jurisprudence on indigenous rights of the Inter-American human rights system.
The African Commission on Human and Peoples' Rights insisted that priority be afforded to the rights of the indigenous Endorois over the Kenyan government's ecological needs. The complaint alleged that the Government of Kenya forcibly removed the Endorois from their ancestral lands without proper prior consultations or adequate and effective compensation when the government created game reserves in 1973 and 1978. Parts of the Endorois' ancestral land was allegedly demarcated and sold by the state to third parties and concessions for ruby mining were granted to a private company.
After first unsuccessfully contesting admissibility of the complaint and the characterisation of the Endorois as an indigenous group, the government asserted that its creation of the game reserves was for purposes of conserving the environment and wildlife and was necessary to conserve some of the areas which had been threatened by encroachment due to modernisation. The government did not deny that the Endorois' had been removed for this purpose.
The case shows how many claims result in an adjudicating body balancing two rights. Turning first to the claim of religious liberty, the African Commission agreed that in some situations it may be necessary to place limited restrictions on a right protected by the African Charter, but the raison d'être for a particularly harsh limitation on the right to practice religion, such as that experienced by the Endorois, must be based on exceptionally good reasons. It is for the respondent state to prove that such interference is not only proportionate to the specific need on which it is predicated, but is also reasonable.
The African Commission was "not convinced that removing the Endorois from their ancestral land was a lawful action in pursuit of economic development or ecological protection". Instead, it found that allowing the Endorois to use the land to practice their religion would not detract from the goal of conservation or developing the area for economic reasons.
The government also argued that the game reserve under the wildlife laws of Kenya has the objective of ensuring that wildlife is managed and conserved to yield - to the nation in general and to individual areas in particular - optimum returns in terms of cultural, aesthetic and scientific gains, as well as economic gains incidental to proper wildlife management and conservation.
The African Commission rejected these justifications, concluding that the Endorois property rights were encroached upon by the expropriation and the effective denial of ownership of their land. The Commission pointed out that encroachment on property rights in itself is not a violation of Article 14 of the Charter, as long as it is "in the interest of public need or in the general interest of the community" and "in accordance with appropriate laws".
The question was whether the encroachment "in the interest of public need" was proportionate to the point of overriding the rights of indigenous peoples to their ancestral lands. In this respect, the Commission found that the 'public interest' test has a "much higher threshold" in the case of indigenous land than in respect to individual private property. Any limitation must be the least restrictive measure possible. The African Commission concluded that in the pursuit of the legitimate aim of creating a game reserve, the upheaval and displacement of the Endorois from their ancestral lands and the denial of their property rights were disproportionate to any public need served by the Game Reserve.
According to the Commission, the legitimate aim could have been accomplished by alternative means proportionate to the need. The evidence demonstrated that the community was willing to work with the Government in a way that respected their property rights in creating the game reserve.
To instead deny the Endorois all legal rights in their ancestral land and to evict them violated "the very essence" of the right to property and could not be justified with reference to "the general interest of the community" or a "public need". In fact, carrying out forced evictions was found to constitute a violation of Article 14's requirement that limiting these rights should be done "in accordance with the law". This provision must mean, at the minimum, that both Kenyan law and the relevant provisions of international law are respected. Two further tests had to be met in order for a limitation on the right to property to be "in accordance with the law": consultation and compensation.
Since no effective participation was allowed for the Endorois, no reasonable benefit was enjoyed by the community and no prior environmental and social impact assessment was carried out, the absence of the three elements was held "tantamount to a violation of Article 14" under the Charter. It also amounted to a violation of the right to development.
The Commission ultimately held there was no conflict between upholding human rights and the government's stated conservation goals, for several reasons: (a) the Endorois - as the ancestral guardians of the land in question - are best equipped to maintain its delicate ecosystems; (b) the Endorois are prepared to continue the conservation work begun by the Government; (c) no other community have settled on the land in question; (d) the land has not been destroyed or degraded; (e) continued dispossession and alienation from their ancestral land continues to threaten the cultural survival of the Endorois, a consequence which the Commission found tips the balance of proportionality on the side of indigenous peoples under international law. The Commission thus found that the cultural activities of the Endorois community pose no harm to the ecosystem of the game reserve and the restriction of cultural rights could not be justified, especially as no suitable alternative was given to the community.
The international cases that have held in favour of human rights and against a state's environmental measures have generally accepted that environmental protection is a legitimate aim in the public interest. The rejected measures have been found to overreach in achieving this aim, however, in most instances because the tribunal appears convinced that the individuals or groups involved will themselves be adequate stewards of the natural resource in question. This is especially the case when indigenous peoples are involved.
One of the most significant cases involving a conflict between environmental protection and human rights is the 2006 Botswana case of Sesana and Others v. Attorney General, High Court, a case that parallels the African Commission case concerning the Endorois. The case concerned the Central Kgalagadi Game Reserve (CKGR), a protected area created in 1961. At the time of its creation, it was the largest game reserve in Africa. In 1985, the government appointed a Fact Finding Mission, whose mandate was to "study the potential conflicts and those situations that were likely to adversely affect the Reserve and the inhabitants of the area".
The government subsequently adopted regulations to ban access to the CKGR and relocate the San or Boswara people, an indigenous group whose traditional lands included the area where the reserve is located. The Supreme Court unanimously held that the group constituted an indigenous people with rights under international law and that the government in enforcing its measures had violated the rights of the San, despite the legitimate goals of having a game reserve in Africa.
III - INTER-AMERICAN CASES
Case-law from different regions, although not binding, can be called upon as an aid in interpreting rights. In this respect, the innovative decisions of the Inter-American system provide an important point of reference.
Complaints of human rights violations allegedly committed by an Organisation of American States (OAS) member-state may be brought to the Inter-American Commission on Human Rights once recourse to local remedies has proven unsuccessful. The Commission applies the rights contained in the 1948 American Declaration on the Rights and Duties of Man to all OAS member states and the rights and obligations in the 1969 American Convention on Human Rights to the states that are party to that agreement.
The Commission may refer a case to the Inter-American Court of Human Rights, an organ established by the American Convention, if the respondent state is a party to the Convention and has accepted the Court's jurisdiction. Judgments of the Court are binding and the Court has broad powers to afford remedies to victims of violations.
Landmark cases concerning indigenous and tribal claims began being filed in the 1980s, and for the large majority of cases, the problems stem from conflicts over land and resources that are part of the ancestral territories of indigenous communities.
One of the earliest cases which brought the Commission's attention to the circumstances of indigenous peoples was Yanomami v. Brazil (1985). The petition alleged that the government had violated the American Declaration on the Rights and Duties of Man by constructing a highway through Yanomami territory and authorising exploitation of the territory's resources.
These actions led to the influx of non-indigenous individuals who brought contagious diseases that remained untreated because of a lack of medical care. The Commission found that the government had violated the Yanomami's rights to life, liberty and personal security guaranteed by article 1 of the Declaration, as well as the right of residence and movement (article 8) and the right to the preservation of health and well-being (article 11).
Following the Yanomami case, the Commission issued reports on the human rights situations in several countries, each report containing a discussion of the rights of indigenous peoples, especially those confronted with development projects on their ancestral lands. The Commission reassured states that it recognises the right to development, including the freedom to exploit natural resources through granting concessions and accepting international investment, but the Commission insisted that the absence of regulation, inappropriate regulation, or a lack of supervision in the application of national and international norms may create serious problems that amount to human rights violations.
i) Land rights and the right to property
The jurisprudence of the Inter-American system acknowledges that the lands indigenous peoples traditionally use and occupy are critical to their physical, cultural and spiritual vitality. This unique relationship to traditional territory may be expressed in different ways, depending on the particular indigenous people involved and specific circumstances. This may include traditional use or presence such as maintenance of sacred or ceremonial sites, settlements or sporadic cultivation, seasonal or nomadic gathering, hunting and fishing, the customary use of natural resources or other elements characterising indigenous and tribal cultures.
As the Inter-American Court has pointed out, "for indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations". Elsewhere the Court has commented that "it is necessary to take into account that the land is closely linked to their oral expressions and traditions, their customs and languages, their arts and rituals, their knowledge and practices in connection with nature, culinary art, customary law, dress, philosophy, and values". The Committee for the Elimination of Racial Discrimination has also concluded that indigenous peoples' territorial rights are unique, and encompass a tradition and a cultural identification of indigenous peoples with their lands.
ii) The Awas Tingni judgment and subsequent cases
The landmark case of the Awas Tingni Mayagna (Sumo) Indigenous Community v. Nicaragua originated as an action against government-sponsored logging of timber on indigenous lands. The Awas Tingni community was not consulted before the government granted the logging concession and local remedies were unavailing in providing any redress to the community. The Awas Tingis complained to the Inter-American Commission, alleging that the government violated their rights to cultural integrity, religion, equal protection and participation in government. In 1998, the Inter-American Human Rights Commission found in favour of the Awas Tingni and submitted the case to the Inter-American Court.
On August 31, 2001, the court issued its judgment on the merits and reparations. The Court, by seven votes to one, declared that the State violated the right to judicial protection and the right to property. The Court unanimously declared that the state must adopt domestic laws, administrative regulations, and other necessary means to create effective surveying, demarcating and title mechanisms for the properties of the indigenous communities, in accordance with customary law and indigenous values, uses and customs.
Pending the demarcation of the indigenous lands, the state must abstain from realising acts or allowing the realisation of acts by its agents or third parties that could affect the existence, value, use or enjoyment of those properties located in the Awas Tingni lands. The Court also declared that the State must invest $50,000 in public works and services of collective benefit to the Awas Tingni as a form of reparations for non-material injury and awarded $30,000 for legal fees and expenses. On December 18, 2008, the Commission could report that it had closed the case as a result of compliance by the government with the Court's judgment. The lands of the Awas Tingni were demarcated and titled to them.
Following the Awas Tingni judgment, new indigenous land and resource claims were brought to the Commission and Court. In the 2004 case Maya Indigenous Communities of the Toledo District v. Belize, the Commission followed but expanded on the Court's judgment in the Awas Tingni case.
The Commission held Belize responsible for violating the rights guaranteed by articles 2 (equality), 13 (property) and 18 (judicial protection) of the American Declaration, due to its granting logging and oil concessions in and failing to protect indigenous lands, failing to recognise and secure the territorial rights of the Maya people in those lands, and failing to afford the Maya people judicial protection of their rights due to delays in court proceedings instituted by them. The Commission also upheld petitioners' assertions that the state's actions had impacted negatively upon the natural environment on which the Maya people depend for subsistence.
Decisions of the Inter-American Court have further elaborated on the rights and duties concerning indigenous peoples. The Court decided the case of the Yakye Axa v. Paraguay on June 17, 2005 and followed with another judgment on March 29, 2006, in which the Court unanimously found Paraguay in violation of rights of property, life, and judicial protection in the Sawhoyamaxa Indigenous Community.
In both cases, the applicants asserted the responsibility of the state for failing to ensure their ancestral rights, making them vulnerable to deprivations of food, health and sanitation. The Court called on the state to demarcate the indigenous lands and provide a development fund, among other remedies.
The Sawhoyamaxa case was particularly difficult because it involved the issue of third party rights in the lands in question. The Court summed up its earlier jurisprudence: 1) traditional possession of lands by indigenous people has equivalent effects to those of state-granted full property title; 2) traditional possession entitles indigenous people to demand official recognition and registration of property title; 3) the members of indigenous peoples who have unwillingly left their traditional lands, or lost possession of them, maintain property rights thereto, even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith; and 4) the members of indigenous peoples who have unwillingly lost possession of their lands, when those lands have been lawfully transferred to innocent third parties, are entitled to restitution thereof or to obtain other lands of equal size and quality. Consequently, possession is not a requisite condition for the existence of indigenous land restitution rights.
IV - CONCLUSION
The institutions and norms of the regional systems have sought to reconcile two fundamental values of the international community - acknowledging the importance of economic development while ensuring that human rights and environmental protection are respected. The term "sustainable development" adopted by the Rio Declaration on Environment and Development reflects the triad of interests that must be taken into account by governments and international organisations.
Not a single one of the three goals - environmental protection, economic development and respect for human rights - can be achieved without consideration for the other two. At the Johannesburg Summit on Sustainable Development, the global community reaffirmed this reality, recasting the social, ecological and economic dimensions of sustainable development as three pillars which all must stand firm over the long-term. Each state's obligation is to ensure that the pillars are reflected in its domestic laws and policies and that the special rights and needs of indigenous peoples are respected in the process.
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QUESTIONS TO CONSIDER:
1. How have perceptions of indigenous peoples' rights evolved?
2. What are the main differences between indigenous peoples' rights in the ILO conventions and the UN Declaration? Which is more advantageous and what are the drawbacks for each?
3. How has the Inter-American Commission taken the lead in indigenous peoples' rights?
4. How do you think indigenous peoples' rights should be balanced against the pursuit of development?
 Afr. Comm'n HPR, Case 276/2003, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya.
 Communities living around the National Reserves are permitted in some instances to drive their cattle to the Reserve for the purposes of grazing, so long as they do not cause harm to the environment and the natural habitats of the wild animals.
According to the government "The Forests (Tugen-Kamasia) Rules" enable the inhabitants of the Baringo Duistrict, including the Endorois, to enjoy some privileges of access for some purposes: to collect dead wood for firewood, pick wild berries and fruits, take or collect the bark of dead trees for thatching beehives, cut and remove creepers and lanes for building purposes, take stock, including goats, to watering places as may be approved by the District Commissioner in consultation with the Forest Officer, enter the Forest for the purpose of holding customary ceremonies and rites, so long as no damage is done to any tree, graze sheep within the Forest, graze cattle for specified periods during the dry season with the written permission of the District Commissioner or the Forest Officer and to retain or construct huts within the Forest by approved forest cultivators among others. The government argued that the Rules ensure that the people could obtain food and building materials, as well as run some economic activities such as beekeeping and grazing livestock in the Forest.
 Sesana and Others v Attorney General, High Court, Misc. No 52 of 2002; ILDC 665 (BW 2006), Judgment of Dec. 13, 2006.
 IACHR. Community Mayagna (Sumo) Awas Tingni v Nicaragua (Merits, Reparations and Costs), 31 Aug. 2001, Ser. C, No. 79, para. 149; Yakye Axa v Paraguay (Merits, Reparations and Costs), 17 June 2005, Ser. C, No. 125, para. 124, 131; Plan de Sánchez Massacre (Guatemala) (Reparations and Costs), 19 Nov. 2004, Ser. C, No. 116, para. 85.
 IACHR, Yakye Axa v Paraguay, ibid, para. 154.
 CERD, decision 2(54) Australia, para. 4, cited in IACHR, Report No. 75/02, Case 11.140, Mary and Carrie Dann v. United States, 27 Dec 2002, para. 130, n. 97.
Dinah Shelton is a professor of international law at the George Washington University. She became the first woman nominated by the US to be a member of the Inter-American Commission on Human Rights. In 2009, she began her four-year term. She has written many distinguished books and articles on international law and served on the board for many human rights and environmental organisations.