After over two decades of negotiations and multiple drafts, the UN in 2007 adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)[1] for the promotion, development, and maintenance of indigenous rights, and the ability of indigenous people to apply and adhere to customary laws within their local communities. This has laid the groundwork for the emergence of internationally recognized pluralist legal regimes in all signatory countries. While one of the most apparent clashes between mainstream nation-states and indigenous communities is the latter’s preference to uphold traditional legal practices[2], the declaration also provides indigenous communities with various rights. For that reason, it is worth trying to determine ways to harmonize these systems.
Legal Pluralism and Indigenous Communities
As Rachel Sieder puts it, legal pluralism refers to the existence of more than one legal order in the same territory[3]. The issue here is that, for any nation-state to exist, it requires adherence to a fundamental set of laws. According to the rule of law, laws ought to be applied universally in an equal manner, without being arbitrarily applied to an individual or a community. On the other, indigenous communities who have evolved over the centuries, have their own set of customary laws, which would go amiss if they were not allowed to follow their customs and practices. Most customary laws and practices by nature are unwritten and are constantly evolving and changing. This left us in a unique position where both sides needed to be taken into account, thus, causing sizeable delays in drafting, and thereafter, adopting a declaration that favors the vast and ever-expanding communities of indigenous peoples.
International Law
Before the UNDRIP, there was the ILO Convention No.169 which stipulated that due regard should be taken in accordance with customary laws and practices,[4] and that to the extents possible in accordance with national law and international human rights standards, indigenous people should be allowed to abide by their customs and deal with offenses done by members within their communities as such customs dictate[5]. With the adoption of the UNDRIP things became much more straight forward, Article 34 of the UNDRIP states, “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.” This, when read with Articles 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, becomes plentifully clear that due to their inherent right to self-determination, indigenous people can determine their own political status and have the right to pursue their own social, cultural, and economic development.
The problems
The problem with the existence of a secondary legal order is its clash with the primary principles of national sovereignty and the rule of law. Taking the latter first into question, most customary laws are inherently patriarchal and may be harmful to the interests of certain members of the communities, specifically of women and children. Apart from this, there is also the matter of a vast difference in the procedural steps of each system. But as Robin Perry[6] shows, it is the inherent nature of international law to evolve in such a way as to be able to allocate for these pluralistic legal systems and not to shun the acceptance of indigenous customary law.
The best way to promote and protect the interests of the indigenous people in a state is to ensure their representation in the parliament. Many countries that are moving in a progressive route concerning indigenous representation in the legislative branch of government have taken proactive measures to minimize the hurdles of an indigenous representative making it through the electoral process. When considering indigenous women in political participation, we come across a minority located within a minority population, with there being a shocking ratio of 1 woman representative to every 9 male representatives[7].
While there pervades the contention that indigenous representation regardless of gender in parliaments inherently might not make any differences due to the misconstruction of mandates, interests, and minority relevance; that does not mean that this is a fight to abandon. The same situation has been observed throughout history every time a minority has been focused on, be it racial or gender-based. Meaningful representation would, at the very minimum, ensure that indigenous populations are being consulted and involved in decision-making. The global stance to take at this point is the offering of a holistic preferential treatment to marginalized minorities in light of the socio-economic discriminations that they face. The same can be deduced from the patterns of international jurisprudence. In the Yatama v. Nicaragua case[8], the court laid out due emphasis by taking into account that circumstances may not necessarily be equal for all national societies or sectors of a nation, and ordered Nicaragua to adopt any measure necessary to ensure equal conditions for indigenous people to participate. In The Case Ángela Poma Poma v. Peru[9] before the HRC, HRC explicitly held that there was clear disproportionality in the effective representation of indigenous peoples that would lead to economic disadvantages.
Article 4 of the UNDRIP promotes and safeguards the creation of autonomous or traditional institutions for self-governance[10]. Colombia through Law No. 89 of 1890 recognizes Resguardos a system of indigenous (territorially based) autonomy[11]. The 1998 Ecuadorian Constitution was originally written with the right to develop and preserve traditional forms of Creating and exercising authority.
Indigenous representation in parliament can help ensure the implementation of indigenous rights, but a lack of proportionality emerging from specific political interests can reduce their chances. For that reason, political participation is important, especially for women.
The CESCR in its General comment No. 21 pressed on the urgent need for indigenous participation and the duty of states to ensure the same[12]. Having taken a purview of the direction that international jurisdiction points to, it is my opinion that in the present case the court’s decision was valid and holistic.
Multiple international instruments have recognized the fundamental right of every person to have access to human rights. Although there are no binding human rights instruments that cater to the protection of indigenous people, there are some encompassing provisions in broader instruments that can be applied to indigenous people. The International Covenant on Economic, Social and Cultural Rights (ICESCR)[13] calls for the guarantee of the highest attainable standard of both physical and mental care for all persons. Further Article 21 of the UN Declaration[14] poses liability upon the state to ensure that indigenous people can access standard socio-economic rights including water, healthcare, and sanitation without any discrimination. This can be further extended by an excerpt from Article 21 of the ILO Convention 169 which places further liability on the state to ensure that any health care services for the benefit of indigenous people have an extended burden of care to facilitate for the geography and socio-economic differences of indigenous identity[15]. The Convention on the Rights of the Child is the first international convention that puts binding liability on its signatories to accommodate for the needs of indigenous children[16]. General Comment 14 emphasizes the importance of health care for indigenous peoples and children, and also allows the use of traditional medicines under UDRIP Article 24. [17]
The CRC recognizes the rights of children in their individual capacity whereas in most other instruments the rights of indigenous peoples are provided in a collective manner. The collective rights have a sui generis interpretation and are implied to be made for the collective protection of the group[18]. These rights are to ensure the protection and enchantment of the group’s culture, heritage, rituals, and practices reflecting upon the intrinsic identity that the indigenous groups gather self-determination from.
The CRC is the only known instrument to extend individualistic rights to minorities whereas all the others are concerned about collective rights and protection of cultural identity. This leads me to believe that the CRC envisions emerging expectations or provides the mandate for states to exercise a certain degree of negative enforcement for the protection of indigenous children or other marginalized minorities. However, the CRC also in Article 17 recognizes the critical influence of mass media in shaping culture. This may have far-reaching interpretations but assuming from the general trajectory of international law, states may be allowed a very small leash on negative enforcement.
This question relates to the indigenous people’s cultural property reparation claims. A human right of indigenous peoples to control and access their cultural properties and/or heritage is an important component of the human right to take part in cultural life. As far as indigenous people are concerned, there exists no general human right to cultural property or even a human right to cultural property reparation.[19] However, international human rights treaties, soft law documents, and international customary laws have developed a right of indigenous peoples to the reparation of their cultural property. In light of established case law and international human rights framework on indigenous rights, it must be emphasized that Indigenous people’s cultural property rights and the right to reparation is enshrined in key human rights treaties. If the treaties are ratified, the following provisions can be cited to effectively argue that indigenous people can claim a remedy from the court:
- UN Declaration on the Rights of the Indigenous People (Articles 11-12);
- International Covenant on Civil and Political Rights (Article 1);
- International Covenant on Economic, Social and Cultural Rights (Articles 1, 15);
- ILO Convention 169 (Articles 4-5).
The world is hoping to be able to incorporate customary indigenous law to let people practice their customs; however, in the development of the last 15 years, it is apparent that this change shall be a slow and arduous uphill climb. The primary point of consideration should be to establish harmony between the systems and to introduce proper channels to resolve internal conflicts between the systems.
[1] UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples. [online] Available at: www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
[2] Leila Chirayath et al., Customary Law and Policy Reform: Engaging with the Plurality of Justice
Systems 1 (World Bank, Background Paper to World Development Report, 2005).
[3] Merry, Sally Engle. “Legal Pluralism.” Law & Society Review, vol. 22, no. 5, 1988, pp. 869–896. JSTOR, www.jstor.org/stable/3053638.
[4] Article 8 of the ILO Convention No.169
[5] Article 9 of the ILO Convention No.169
[6] Perry, Robin. “Balancing rights or building rights-reconciling the right to use customary systems of law with competing for human rights in pursuit of indigenous sovereignty.” Harv. Hum. Rts. J. 24 (2011): 71.
[7]Women in Parliaments, IPU, available at www.ipu.org/wmn-e/world.htm.
[8]I/A Court HR, Yatama v. Nicaragua, 23 June 2005, Serie C. No. 127.
[9]Ángela Poma Poma v. Peru, Human Rights Committee, 27 March 2009, Communication No. 1457/2006 (ccpr/C/95/D/1457/2006).
[10] Nordic Journal of Latin American and Caribbean Studies (2014) pp. 67–90. DOI: 10.16993/ibero.23.
[11]‘Colombia: Autonomías indígenas en ejer-cicio. Los retos de su consolidación’,in M. González, A. Burguete Caly Mayor, and P. Ortiz-T. (eds.) pp. 149–176.
[12]Committee on Economic, Social and Cultural Rights, General comment No. 21. Right of everyone to take part in cultural life (Art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights) (E/C.12/gc/21, 2009) para. 55.
[13] International Covenant on Economic, Social and Cultural Rights; ga Res 2200 (xxi), un Doc a/6316 (1966) 993 UNTS 3.
[14] The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted on 13 September 2007, www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
[15] ILO Indigenous and Tribal Peoples’ Convention 1989 (No. 169) adopted during the 76th ilc session (27 June 1989).
[16] Convention on the Rights of the Child ga Res 25 (xliv), un gaor Supp No 49 un Doc a/res/44/25 1989.
[17] CESCR General Comment No.14
[18]Office of the High Commissioner for Human Rights (2001), Leaflet No. 10: Indigenous Peoples and the Environment, United Nations, Geneva.
[19] Karolina Kuprecht, Indigenous Peoples’ Cultural Property Claims: Repatriation and Beyond (Springer, 2014)75.
