Post by Sarah Schmer, J.D. Expected, May 2019, Elisabeth Haub School of Law at Pace University
How do indigenous peoples’ rights fit into the international legal space, and do indigenous peoples have a right to bring claims at the international level and in international courts? A pressing issue of indigenous peoples has been violations of land safety and security. Indigenous peoples have been bringing claims at the international level since 1920, and did so before the first international body to act on indigenous issues: the International Labor Organization (“ILO”).
The rights of indigenous people have overlapped with many other human rights, and States have avoided defining the international legal rights of indigenous peoples, because those rights are not framed in specific indigenous peoples’ rights treaties, but are part of more general international instruments, like the Universal Declaration of Human Rights or the Convention on the Prevention and Punishment of the Crime of Genocide. Indigenous rights stem from various branches of international law, including international human rights law, international labor law, and international environment law. International and regional human rights jurisprudence has further advanced the application of key indigenous peoples’ rights in the conservation of land and natural resources.
In 2007, the General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples, and by 2010, it was supported by the clear majority of United Nations Member States and opposed by none. It is applicable to indigenous human rights, thereby helping reverse the vast historical exclusion of indigenous peoples from the international legal system. The Declaration is the most comprehensive instrument detailing the rights of indigenous peoples in international law and policy, containing minimum standards for the recognition, protection and promotion of these rights.
Indigenous rights have not been properly acknowledged; this is unfortunate as the rights reorganized in the declaration are far from being realized. According to the UN High Commissioner of Refugees, the rights of indigenous peoples have recently been violated in the name of conservation. Indigenous land rights have been at issue, especially as articles of the UN Declaration have been violated for the sake of legally accepted methods of conservation. Article 8(2)(b) provides that
States shall provide effective mechanisms for prevention of, and redress for: Any action which has the aim or effect of dispossessing them of their lands, territories or resources.
Furthermore, the conservationist agendas have resulted in several indigenous relocations, a blatant a violation of the UN Declaration. A few examples are as follows: Ethiopian government under its “villagization” program, the Ogiek and Sengwer people of Kenya, and the case of the Lubicon Cree in Canada. Article 10 states:
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.” [Emphasis added].
Article 10 has been violated as states have not obtained or given informed consent of the indigenous communities to take conservationist actions. Examples of these violations are stated above, especially in the case of the Lubicon Cree, regarding the land claim agreement and the need to consult with the Lubicon prior to any resource exploration or exploitation.
Article 25 of the Declaration states,
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
While international law does not apply generally retroactively and lands that were taken prior to the UN Charter, ILO treaty and UN Declaration do not have to be returned to indigenous peoples under national law, these provisions should inhibit countries from taking sacred lands currently. This last article has been disregarded as the spiritual relationship and links indigenous peoples have with the plants, trees and animals on their lands and protecting their lands as a sacred duty have not been respected.
For example, these conflicts between conservation policies and indigenous communities (as of 2016 after the UN charter, ILO treaty and UN declaration ) have arisen in the experiences of the Sengwer and Ogiek peoples in Kenya. Cherangani Hills in western Kenya is home to several indigenous peoples, including the Sengwer community. However, Kenya’s conservation policies have resulted in alienation of indigenous peoples’ from their lands. Milka Chepkorir Kuro, a Sengwer herself and 2016 participant in the UN Human Rights Office of Indigenous Fellowship Program stated
We have been facing a lot of human rights violations, forceful evictions from our forest homes…and as a result we do not have a place where we can sit and say ‘This is our home.’
Despite these connections and spiritual meanings, the legal world does not recognize these ties as specifically conserving the land and resources, because the conservation community has failed to acknowledge indigenous peoples’ contribution to conservation. Society has increasingly acknowledged that ancestral lands of indigenous peoples maintain the most intact ecosystems and provide the most effective sustainable form of conservation; yet, to date, the important role played by indigenous peoples’ as environmental guardians has still failed to gain due recognition.
Globally, many indigenous peoples face similar issues. The controversy over the United States’ pipeline, a seemingly domestic issue, is also of international significance but a little recognized piece of the dispute. If indigenous issues are not addressed and respected on an international legal level, how can these groups be protected by the international community? These are peoples whose land has been taken in the name of colonialism and expansion; however, their voices seem so faintly heard by the international community.
- Victoria Tauli-Corpuz, Report of the Special Rapporteur of the Human Rights Council on the Rights of Indigenous Peoples
- UN High Commissioner on Refugees, Indigenous Peoples’ Rights Violated in the Name of Conservation
- UN Voluntary Fund for Indigenous Peoples
- Indigenous Peoples and the United Nations Human Rights System
- United Nations Declaration on the Rights of Indigenous Peoples
- Does the Dakota Access Pipeline Violate Treaty Law?