The Inherent Rights of Indigenous Peoples in International Law

The Inherent Rights of Indigenous Peoples in International Law
A cura di:  Antonietta Di Blase, Valentina Vadi
Editore: RomaTrE-Press
Data di pubblicazione: febbraio 2020
Pagine: 327
ISBN: 978-88-32136-92-0

Abstract

This book highlights the cogency and urgency of the protection of indigenous peoples and discusses crucial aspects of the international legal theory and practice relating to their rights. These rights are not established by states; rather, they are inherent to indigenous peoples because of their human dignity, historical continuity, cultural distinctiveness, and connection to the lands where they have lived from time immemorial. In the past decades, a new awareness of the importance of indigenous rights has emerged at the international level. UN organs have adopted specific international law instruments that protect indigenous peoples. Nonetheless, concerns persist because of continued widespread breaches of such rights. Stemming from a number of seminars organised at the Law Department of the University of Roma Tre, the volume includes contributions by distinguished scholars and practitioners. It is divided into three parts. Part I introduces the main themes and challenges to be addressed, considering the debate on self-determination of indigenous peoples and the theoretical origins of ‘indigenous sovereignty’. Parts II and III explore the protection of indigenous peoples afforded under the international law rules on human rights and investments respectively. Not only do the contributors to this book critically assess the current international legal framework, but they also suggest ways and methods to utilize such legal instruments towards the protection, promotion and fulfi lment of indigenous peoples’ rights, to contribute to the maintenance of peace and the pursuit of justice in international relations.

Contributi

Introduction

Antonietta Di Blase  Valentina Vadi 

The introduction highlights the main challenges in the protection of indigenous peoples and discusses crucial aspects of the international legal theory and practice relating to the inherent rights of indigenous peoples.

The Self-Determination of Indigenous Peoples

Antonietta Di Blase 

The chapter discusses both theoretical and practical developments of the principle of self-determination. As is known, the 2007 Declaration on the Rights of Indigenous peoples has explicitly recognised the right of indigenous peoples to self-determination. Such right has been of great significance in three main fields of legal practice: 1) the active participation of indigenous peoples in the definition of ‘indigenousness’; 2) their self-government, that is, their capacity for managing the possession and use of the land; and 3) self-identification. In these fields, a widespread awareness has emerged about the distinctiveness of the indigenous peoples and their traditional and cultural background, leading to a general approach in favour of the recognition of their autonomy and support for coordination between States and indigenous systems. The right of self-determination of indigenous peoples is also relevant beyond the borders of the local State, also thanks to the contribution of the UN organs established to deal with compliance with human rights. Some pitfalls nonetheless remain, such as the lack of direct access of indigenous peoples to international instruments of recourse.

Spatio-Temporal Dimensions of Indigenous Sovereignty in International Law

Valentina Vadi 

The sovereignty of indigenous peoples has long been a matter of debate. This chapter investigates the spatio-temporal dimensions of indigenous sovereignty in international law. The topic holds both theoretical relevance and contemporary practical significance, as it can inform and transform ongoing debates on the rights of indigenous people. The chapter highlights the importance of history in any serious and constructive consideration of the territorial and spatial dimensions of sovereignty. It also highlights that a just or at least fair resolution of any question relating to sovereignty, including its territorial dimension, must fully consider competing stories, histories, and temporalities of sovereignty. This method of analysis infuses the concept of sovereignty with inter-civilisational connotations, which are often neglected in current debates. The chapter supports the emergence of novel concepts, such as parallel sovereignty, to complement and give further impulse to the self-determination of indigenous peoples within the state. This reflection appeals to the experiences and histories of non-Western cultures and civilisations, thereby opening new avenues for informing future theory and practice of international law.

The Indigenous Peoples’ Right to Lands and Natural Resources in the Inter-American Human Rights System: Preserving Cultural Identity while Ensuring Development

Gabriella Citroni 

The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have developed an especially progressive jurisprudence on indigenous peoples’ rights. In particular, they have recognised the special tie existing between indigenous communities and their ancestral lands and natural resources contained therein as the source of their distinct cultural identity.  Thus, ensuring the rights to property, possession, enjoyment and exploitation of ancestral lands and natural resources is pivotal to guaranteeing the physical and cultural survival of the indigenous peoples concerned. However, the preservation of cultural identity and traditional values of indigenous peoples through the protection of their right to lands and natural resources often clashes with state or private companies’ projects and development activities. The chapter illustrates the Inter-American jurisprudence with special attention to the use of precautionary and provisional measures and the design of adequate measures of reparation in cases concerning indigenous peoples’ right to lands and natural resources.

Indigenous Peoples’ Rights in International Law: The Ogiek Decision by the African Court of Human and Peoples’ Rights

Carlo Focarelli 

On the 26 May 2017, the African Court on Human and Peoples’ Rights (ACtHPR) delivered its first judgement on a case concerning indigenous peoples’ rights. The judgment has been extensively welcomed as ‘historic’, a ‘huge victory’ and a ‘landmark’ for the protection of indigenous peoples’ rights in Africa. This Chapter first examines the status of indigenous peoples under international law in the current ‘states’ system’, both diachronically and synchronically; it then analyses the legal status of the particular indigenous people of the Ogiek in the African context and in light of said ACtHPR’s judgment.

The Protection of Indigenous Cultural Heritage in International Investment Law and Arbitration

Valentina Vadi 

The protection of cultural heritage is a fundamental public interest that is closely connected to fundamental human rights and is deemed to be among the best guarantees of international peace and security. Economic globalization and international economic governance have spurred a more intense dialogue and interaction among nations—potentially promoting cultural diversity and providing the funds to recover and preserve cultural heritage. However, these phenomena can also jeopardise cultural heritage. Foreign direct investments in the extraction of natural resources have the potential to change cultural landscapes and erase memory, and foreign investments in the cultural industries can induce cultural homogenization. In parallel, international investment law constitutes a legally binding and highly effective regime that demands that states promote and facilitate foreign direct investment. Does the existing legal framework adequately protect indigenous cultural heritage vis-à-vis the economic interests of foreign investors? This chapter aims to address this question by examining recent arbitrations and proposing legal tools to foster a better balance between economic and cultural interests in international investment law and arbitration.

 

The Safeguard of Indigenous Peoples within International and EU Law on Investment. An overview

Pia Acconci 

The present contribution discusses regulatory changes within international investment law due to the political shift in the approach of a number of states and of the European Union. These changes have revised the traditional pro-investor framework and attributed relevance to a few non-investment concerns related to sustainable development. The safeguard of the specific interests of indigenous peoples can be seen as one of these concerns. However, this safeguard has been mostly indirect, in light of the widely-accepted market-oriented conceptualization of sustainable development and of the regulatory diversification typical of international law. A few concluding remarks highlight the main reasons why a multilateral approach to international investment law might contribute to enhance the safeguard of the specific interests of indigenous peoples.

Protection of Traditional Knowledge of Agricultural Interest in International Law

Simone Vezzani 

This chapter deals with the international protection and promotion of indigenous traditional knowledge (TK) associated with agriculture, with a special focus on biodiversity-related knowledge. Interest in this knowledge has intensified greatly over the past two decades, along with a growing awareness of the contribution it can make, in a time of climate and environmental change, towards developing more sustainable models of agriculture and contrasting the erosion of both biodiversity and cultural diversity. The chapter analyses the international legal framework for TK protection, as well as current international efforts to develop sui generis protection systems that are culturally more appropriate in light of the collective and intergenerational nature of TK. In this context, the protection of indigenous TK is put against the backdrop of the protection of TK hold by rural communities of peasants, shepherds, and fishermen. The chapter finally investigates the role of intellectual property in preserving indigenous peoples’ TK and promoting their economic empowerment. More precisely, attention is paid to the question as to whether TK falls within the boundaries of protected property under international human rights law.

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