Evolving protection of minority groups: Global challenges and the role of international jurisprudence

International Community Law Review

Volumn 11, Issue 2, 2009, Pages 185-218

  Pentassuglia, Gaetano ^a  

^a UNIVERSITY OF LIVERPOOL   (United Kingdom)

Author keywords

Human Rights; International Law; Judicial Discourse; Minority Groups; Minority Issues

Indexed keywords

EID: 67650330414     PISSN: 18719740     EISSN: 18719732     Source Type: Journal    
DOI: 10.1163/187197309X430918     Document Type: Article

References (117)

1. Aside from an extremely wide range of classical works, literature from the past few years has continued to expand:see e.g. L. Rodríguez- Piñero, Indigenous Peoples, Postcolonialism, and International Law(Oxford, 2005); J. Gilbert, Indigenous Peoples' Land Rights under International Law:From Victims to Actors(Ardsley, 2006); S. Wheatley, Democracy, Minorities and International Law-, (Cambridge, 2005); A. Xanthaki, Indigenous Rights and United Nations Standards:Self-Determination, Culture and Land(Cambridge, 2007); G. Pentassuglia (ed.), 'Reforming the UN Human Rights Machinery:What Does the Future Hold for the Protection of Minorities and Indigenous Peoples?' 14 (2-3) International Journal on Minority and Group Rights (2007) Special Issue; H. O'Nions, Minority Rights Protection in International Law:The Roma of Europe (Ashgate, 2007); M. Weller (ed.), The Rights of Minorities:A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford, 2005); F. Lenzerini (ed.), Reparations for Indigenous Peoples:International and Comparative Perspectives (Oxford, 2008).
2. We use movement' in the sense of 'trend' or 'progress' in the field:Oxford Advanced Learner's Dictionary of Current English (Oxford, 2005), p. 999.
3. Before we proceed, it is necessary to clarify our understanding of 'minority protection' and 'minority rights' in the context of the present article. We use 'minority protection' (and, by implication, minority 'issues', 'claims' or 'question') as an umbrella term that encompasses a flexible range of matters relating to 'minority groups', i.e. ethno-cultural minorities, including indigenous communities, falling within the scope of either general human rights treaties or specialised instruments. 'Minority rights' (and by implication, minority 'provisions' or 'instruments'), though partly overlapping with this wider notion of 'minority protection', signifies a separate umbrella category which designates exclusively those rights that have been set forth over the years in a limited number of declarations or treaties regarding such groups. While controversies persist over definitional terms and their implications (see e.g. G. Pentassuglia (ed.), 'Reforming the UN Human Rights Machinery:What Does the Future Hold for the Protection of Minorities and Indigenous Peoples?', supra note 1, especially the contributions by Peter Hilpold and Jérémie Gilbert), 'minorities' and 'indigenous peoples' have, admittedly, come to represent distinctive tracks in terms of international legal protection. This article recognises the distinctiveness of these tracks and conforms to traditional terminology in the context of relevant international instruments or jurisprudence, particularly in respect of those additional layers of protection that are specific to indigenous groups. However, it does so in ways that do not affect a wider conceptualisation of indigenous protection as part of 'minority protection' for the purpose of the analysis, which is to discuss overarching themes of (jurisprudential) discourse rather than a particular legal regime. Moreover, the international legal differences between the minority and indigenous tracks should not distract us from an increasing sense of (partial) overlap between the respective legal standards. For one thing, indigenous communities do qualify, first and foremost, as minorities under traditional international instruments. Indeed, they have constantly used such instruments to frame at least some of their claims, irrespective of any additional measure of protection they are entitled to under the indigenous track. At the same time, the indigenous concept appears to interact with the core notion of 'minority' within the African and Asian settings:see e.g. W. Kymlicka, Multicultural Odysseys:Navigating the New International Politics of Diversity (Oxford, 2007), pp. 266-291. As may be inferred from the above clarification, the perspectives offered in this article do not focus on groups other than traditional ethno-cultural ones, including immigrant communities. Whether migrant communities constitute minorities in international law remains highly contentious in Europe, while the basic notion of minority as traditional community has been reaffirmed:see e.g. A. von Bogdandy, 'The European Union as Situation, Executive, and Promoter of the International Law of Cultural Diversity' 19 European Journal of International Law (2008) 246. General human rights provisions are obviously applicable to all individuals, regardless of group classifications under specialised instruments, and the significance of the following assessment to the interests and needs of immigrant communities very much depends on the issue, instrument or legal setting concerned.
4. G. Gilbert, 'Religio-Nationalist Minorities and the Development of Minority Rights Law' 25 Review of International Studies (1999) 389 et seq.
5. I. Claude, National Minorities:An International Problem (Harvard, 1955), p. 211
6. W. Kymlicka, Multicultural Odysseys, supra note 3.
7. This legacy arguably continued with Yugoslavia's proposal for a UN minority declaration in the late 1970s.
8. The French and Turkish refusal to recognise the existence of minorities within their borders have become textbook examples of this most extreme form of hostility.
9. G. Pentassuglia, Minorities in International Law:An Introductory Study (Council of Europe, 2002);P. Thornberry, International Law and The Rights of Minorities (Oxford, 1991).
10. Unsurprisingly, this debate revolves around notions of cultural diversity, security and/or justice:see e.g. F. Francioni & M. Scheinin (eds.), Cultural Human Rights (Leiden, 2008); W. Kymlicka, Multicul- tural Odysseys, supra note 3, Chapters 6-8; P. Macklem, 'Minority Rights in International Law' 6 (3-4) International Journal of Constitutional Law (2008) 531-552.
11. The (then) Sub-Commission on the Promotion and Protection of Human Rights issued recommenda- tions to that effect:e.g. UN Docs 2000/16, para. 9; 2001/19, para. 7; see also UN Doc. E/CN.4/2002/91/ Add.1.
12. Council of Europe Parliamentary Assembly Recommendation 1492 (2001), para. 12(x).
13. T. Hadden, 'The Role of the Working Group on Minorities', 26 January 2004, UN Doc. E/CN.4/ Sub.2/AC.5/2004/WE3.
14. HRC Res. 6/15, 2007; HRC Res. 6/36, 2007.
15. A/HRC/4/109.
16. A/HRC/4/32, paras. 82-83.
17. For a summary of recent activities, see generally A. Eide & R. Letschert, 'Institutional Developments in the United Nations and at the Regional Level', in G. Pentassuglia (ed.), 'Reforming the UN Human Rights Machinery:What Does the Future Hold for the Protection of Minorities and Indigenous Peoples?', supra note 1, p. 299 et seq.; G. Pentassuglia, International Law and Institutions', in R. Green (ed.)» The State of the World's Minorities 2006 (London, 2006), p. 27 et seq.
18. General Assembly Resolution 55/2.
19. A/59/565.
20. General Assembly Resolution 60/1.
21. A/59/2005.
22. A. Eide & R. Letschert, 'Institutional Developments in the United Nations and at the Regional Level', supra note 17, pp. 309-317.
23. G. Pentassuglia, 'On the Models of Minority Rights Supervision in Europe and How They Affect a Changing Concept of Sovereignty' 1 European Yearbook of Minority Issues (2001-2002) 29 et seq., at pp. 53-55; at the universal level, some form of conditionality has been applied through international financial institutions:see e.g. World Bank Directive 4.10 (revising earlier Directive 4.20), which makes World Bank loans dependent on respect for indigenous communities' land and way of life.
24. W. Kymlicka, Multicultural Odysseys, supra note 3, p. 42.
25. G. Pentassuglia (ed.), 'Reforming the UN Human Rights Machinery:What Does the Future Hold for the Protection of Minorities and Indigenous Peoples?', supra note 1.
26. P. Hilpold, 'UN Standard-Setting in the Field of Minority Rights', in G. Pentassuglia (ed.), 'Reforming the UN Human Rights Machinery:What Does the Future Hold for the Protection of Minorities and Indigenous Peoples?', supra note 1, p. 181 et seq.
27. P. DeAzcárate, League of Nations and National Minorities:An Experiment (New York, 1972); K. Knop, Diversity and Self-Determination in International Law (Cambridge, 2002), Chapter 4; A.N. Mandelstam, La Protection Internationale des Minoritès (Paris, 1931), Chapter VII, Section IV; S. RS Bedi, The Development of Human Rights Law by the fudges of the International Court of Justice (Oxford:Hart Publishing, 2007); T. Koivurova, 'The International Court of Justice and Peoples' 9 International Community Law Review (2007) 157 et seq.
28. H. Arendt, 'The Perplexities of the Rights of Man', in P. Baehr (ed.), The Portable Hannah Λrendt(London, 2000), p. 31 et seq.
29. See e.g. S. Choudhry (ed.), Constitutional Design for Divided Societies:Integration or Accommodation}(Oxford, 2008).
30. See the decision of the EurCrtHR in Leyla Sahin v Turkey., Application No. 44774/98, Judgment of 10 November 2005; Dissenting Opinion of Judge Tulkens. For a broader theoretical perspective on diversity and citizenship, see S. Benhabib, The Rights of Others:Aliens, Residents and Citizens (Cambridge, 2004).
31. This expression is used by Kofi Annan in United Nations, We the Peoples:The Role of the United Nations in the 21st Century (New York, 2000).
32. Commentators have gone as far as to call for a World Court of Human Rights:M. Nowak, 'The Need for a World Court of Human Rights' 7 Human Rights Law Review (2007) 251 et seq.
33. C. McCrudden, A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights', in K. O'Donovan & G.R. Rubin (eds.), Human Rights and Legal History:Essays in Honour of Brian Simpson (Oxford, 2000), p. 29 et seq.; L.R. Heifer & AM. Slaughter, 'Toward a Theory of Effective Supranational Adjudication' 107 The Yale Law Journal (1997) 273 et seq.; AM. Slaughter, 'Judicial Globalization' 40 Virginia Journal of International Law (2000) 1103 et seq.
34. Judgment of 28 November 2007. See also The Saramaka People v. Suriname, Interpretation of the Judgment on Preliminary Objections, Merits, Reparations, and Costs, Judgment of 12 August 2008, Series C No. 185.
35. Articles 3, 21 and 25 in conjunction with Articles 1(1) and 2.
36. Judgment of 28 November 2007, paras. 78-86.
37. Ibid., paras. 78-86.
38. Ibid., para. 164.
39. Ibid., paras. 120-123. This proposition was qualified in paras. 125-128.
40. Particularly on consultation and consent as component of 'effective participation', ibid., paras. 133-137.
41. Ibid., para. 164.
42. Ibid., paras. 170-171, 174.
43. Ibid., para. 172.
44. Ibid., paras. 174-175.
45. Ibid., paras. 19-24.
46. Ibid.., paras. 25-29. As is known, individuals and groups may not petition the IACrtHR.
47. Ibid, paras. 188-189.
48. Ibid., paras. 190-202.
49. Conversely, Saramaka does not cover all aspects of those dimensions.
50. On this see generally, G. Pentassuglia, Minority Groups and Judicial Discourse in International Law:A Comparative Perspective. Leiden:Martinus Nijhoff, forthcoming, 2009.
51. For the implications of the principle of equality as providing an additional dimension to the procedural approach being discussed, see ibid., Chapters 4 and 6.
52. I. Länsman v. Finland, Comm. No. 511/1992, Views of 26 October 1994, Annual Report, vol. II, 1995, 66; J.I. Länsman v. Finland, Comm. No. 671/1995, Views of 30 October 1996, Annual Report, vol. II, 1997, 191; Apirana Mahuika et al v. New Zealand, Communication No. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (2000).
53. Comm. No. 75/92 (1995):'[S] elf-determination may be exercised in any of the following ways independence, self-government, local government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people'. In the AfrCommHPRs Advisory Opinion on the United Nations Declaration on the Rights of Indigenous Peoples, adopted in May 2007, the participatory content of indigenous self-determination short of secession is strongly reaffirmed (para. 27).
54. The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, Comm. No. 155/96, 2001, para. 55.
55. Moiwana Village v. Suriname, IACrtHR, Judgment of June 15, 2005, para. 19. For its part, the all-encompassing nature of the requirement of effective participation was confirmed in the later Saramakadecision regarding Interpretation of the Judgment on Preliminary Objections, Merits, Reparations, and Costs,Judgment of 12 August 2008, Series C No. 185, paras. 16-17. Further elaborating on the specific aspect of prior environmental and social impact assessments (ESIAs), the IACrtHR noted that 'the States obligation to supervise the ESIAs coincides with its duty to guarantee the effective participation of the Saramaka people in the process of granting concessions', ibid., para. 41.
56. Yakye Axa v. Paraguay, Judgment of June 17, 2005, para. 217.
57. Delgamuukw v. British Columbia [1997] S.C.R. 1010.
58. Judgment of the Sapporo District Court, Civil Division No. 3, 27 March 1997.
59. Selangor's High Court [2002] 2 CLJ 543.
60. Within the African context this line is echoed by the AfrCommHPRs understanding of indigenousness as not being limited to 'first inhabitants':Advisory Opinion of the African Commission on Human and Peoples' Rights on The United Nations Declaration on the Rights of Indigenous Peoples, May 2007, paras. 9-13.
61. See generally, G. Pentassuglia, Minority Groups and Judicial Discourse, forthcoming, Chapter 2, supranote 50.
62. th activity report. Probably the gist of this jurisprudence lies as much in expanding the scope of third-party petitioning as it does in re-conceptualising the very (at least implied) notion of Victim' under the communication procedure:at least under certain circumstances, 'people(s)' has been understood to include sectors of the population within state polities as opposed to traditional notions of peoples' rights associated with whole national entities, or even the state.
63. Velásquez Rodriguez v. Honduras, Judgment of 29 July 1988, 28 International Legal Materials (1989) para. 174.
64. Aloeboetoe and others v. Suriname, Judgment on Reparations, 10 September 1993, Ser. No. 15 (1994).
65. Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March, 2006, Series C 146 (2006), paras 204-209; The Saramaka People v. Suriname, Judgment of 28 November 2007, paras. 188-189.
66. In Aloeboetoe, it ordered Suriname to reopen and staff the local school and make the medical dispensary available, 'as an act of reparation' to the benefit of all members of the group; in a very similar vein, moral damages for the benefit of the community were awarded in Moiwana Village v. Suriname, Judgment of June 15, 2005, para. 194. In Yakye Axa, it confirmed the 'special collective significance' of the reparations (see also Case of Massacre de Plan de Sánchez v. Guatemala, Judgment of 19 November 2004 (Reparations), Ser C No 116, para. 86) and ordered Paraguay to provide compensation for material damage, to create a community development fund designed to back up the return of the land to the community, and to offer public apologies to it. Similar measures were ordered in Sawhoyamaxa and Saramaka,given the 'collective nature of the damage caused' (Judgment of 29 March, 2006, Series C 146 (2006), paras. 224 and 228) and the 'collective nature of reparations' (Judgment of 28 November 2007, paras 188, 194-202; importantly, the point was also made that there is no need to individually name the beneficiaries of reparations as long as the members of the group are identifiable in line with the group's practices, ibid., para. 188.
67. On the latter types of remedies, see also The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, AfrCommHPR, Comm. No. 155/96, 2001.
68. See e.g. Nachova and others v. Bulgaria, EurCrtHR, Applications Nos. 43577/98 and 43579/98, Judgment of 6 July 2005.
69. See e.g. Mayagna (Sumo)Awas Tingni Community v. Nicaragua, IACrtHR, Judgment of August 31, 2001.
70. See e.g. The Saramaka People v. Suriname, IACrtHR, Judgment of 28 November 2007.
71. See e.g. DH and others v. The Czech Republic, EurCrtHR, Application No. 57325/00, Judgment of 7 February 2006 and Judgment of 13 November 2007 [GC].
72. See e.g. Mayagna (Sumo) Awas Tingni Community v. Nicaragua, IACrtHR, Judgment of August 31, 2001; Moiwana Village v. Suriname, IACrtHR, Judgment of June 15, 2005; see also the groundbreaking decision of the Supreme Court of Canada in Delgammukw v. British Columbia. [1997] 3 S.C.R. 1010.
73. R. Alexy, 'On Balancing and Subsumption. A Structural Comparison', 16 Ratio luris (2003) 433 et seq.
74. See e.g. Chapman v. United Kingdom, EurCrtHR, Application No. 27238/95, Judgment of 18 January 2001; Yakye Axa Indigenous Community v Paraguay, IACrtHR, Judgment of June 17, 2005, para. 167; Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 March, 2006, IACrtHR Series C 146 (2006), para. 153; Maya Indigenous Communities of the Toledo District v. Belize, IACommHR, Report No. 96/03, Case 12.053, October 24, 2003, paras. 153-154; The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, AfrCommHPR, Comm. No. 155/96, 2001, para. 67; Hopu and Bessert v. France, HRC Comm. No. 549/1993, Views of 29 July 1997, [1997] II Annual Report, 70.
75. Ballantyne et al v. Canada, Communication Nos. 359/1989, 385/1989, Views of 31 March 1993.
76. Cyprus v. Turkey, Application No. 25781/94, Judgment of 10 May 2001, paras. 295-296.
77. Yatama v. Nicaragua, IACrtHR, Judgment of 23 June 2005.
78. Judgment of 28 November 2007, paras. 129-140.
79. It has to be noted that a broadly similar phenomenon is affecting other areas where fundamental interests of individuals and groups are at stake:see e.g. M. Iovane, 'La participation de la société civile à l'élaboration et a l'application du droit international de l'environnement' 112(3) Revue Generate de Droit International Public (2008) 465-520, section II.2.
80. Apirana Mahuika et al. v. New Zealand, Comm. No. 547/1993, Views of 27 October 2000, UN Doc. CCPR/C/70/D/541/1993, para.9.2;/.G.A. Diergaardt et al. v. Namibia, Comm. No. 760/1997, Views of 25 July 2000, CCPR/C/69/D/760/1996, para. 10.3; on a similar theme, see also Marie-Hèlene Gillot et al. v. France, Comm. 932/2000, Views of 15 July 2002, UN Doc. CCPR/C/75/D/932/2000 (2000), para. 13.4.
81. The rationale for internal self-determination as reflected in Katangese Peoples' Congress before the Afr-CommHPR is arguably very similar:see e.g. P. Macklem 'The Wrong Vocabulary of Right:Minority Rights and the Boundaries of Political Community' (2005) University of Toronto Legal Studies Series,Research Paper No. XX-05, p. 18. At the same time, the HRC is increasingly considering the treatment of indigenous communities as 'peoples' in the sense of Article 1:see e.g. concluding observations concerning Canada, Mexico and Norway, UN Doc. CCPR/C/79/Addenda 105, 109, 112 (1999); Australia (UN Doc. CCPR/CO/69/AUS (2000); Denmark (UN Doc. CCPR/CO/70/DNK (2000); Finland (UN Doc. CCPR/CO/82/FIN (2004); United States (UN Doc. CCPR/C/USA/Q/3/CRP.4 (2006). From this point of view, Article 1 is in principle the starting point for articulating a discourse about indigenous self-determination, but this line, too, inevitably breaks down into more specific assessments of (mainly) participation/autonomy and land rights, either in a mutually reinforcing relationship with Articles 25 and 27 (on the connection between Articles 1 and 25, see e.g. J.G.A. Diergaardt et al. v. Namibia, Comm. No. 760/1997, Views of 25 July 2000, CCPR/C/69/D/760/1996, para. 10.8; Marie-Hèlene Gillot et al v. France, Comm. 932/2000, Views of 15 July 2002, UN Doc. CCPR/C/75/ D/932/2000 (2000), para. 13.4), or in synergy with indigenous standards which are external to the ICCPR, as discussed in the section.
82. ACHPR/Res 65 (XXXIV) 03 Resolution on the Adoption of the Report of the African Commission's Working Group on Indigenous Populations/Communities,(2003) at http://www.achpr.org/english/resolutions/resolution70-en.html; ACHPR/Res. 121 (XXXXII) 07 Resolution on the United Nations Declaration on the Rights of Indigenous Peoples, 28 November 2007, at ; Advisory Opinion of the African Commission on Human and Peoples' Rights on The United Nations Declaration on the Rights of Indigenous Peoples, May 2007. In Malawi African Association and Others v. Mauritania (Comm. Nos. 54/91, 61/91, 98/93/, 164/97 à 196/97 and 210/98 (2000), the AfrCommHPRs also used the UNDM to articulate the fundamental principle of non-discrimination and respect for group existence, ibid., para. 131.
83. Advisory Opinion of the African Commission on Human and Peoples' Rights on The United Nations Declaration on the Rights of Indigenous Peoples, May 2007, especially paras. 23-24, 27, 35.
84. In the pending case of Cemiride (on Behalf of the Endorois Community) v. Kenya (Comm. 276/2003), the claims relate to the establishment of a Game Reserve on traditional indigenous land. The Endorois, a pastoralist community, were evicted from their traditional land during the 1970s and 1980s; private concessions were also granted to a company for ruby mining. Applicants claim inter alia a breach of property rights (Article 14), right to disposition of natural resources (Article 21) and cultural rights (Article 17). The application submitted to the AfrCommHPR heavily draws on Inter-American jurisprudence on property rights, HRC jurisprudence on Article 27ICCPR, and general instruments such as ILO Convention 169 and the 1986 UN Declaration on the Right to Development (A/RES/41/128). More generally, Article 60 ACHPR allows the AfrCommHPR to draw inspiration from a variety of international law instruments in the field, particularly those which have been adopted within the African context.
85. Judgment of the Sapporo District Court, Civil Division No. 3, 27 March 1997, in 38 International Legal Materials (1999) 397.
86. Claims Nos. 171 and 172 of 2007, Judgment of 18 October 2007, para. 117; the Court also embraced the understanding of property rights upheld in Maya, ibid., paras. 99-100, 102. For the latter decision, see Report No. 96/03, Case 12.053, October 24, 2003.
87. Ibid., paras. 118-132; see also Sagon Tasi, supra note 59.
88. AfrCommHPR, Comm. No. 155/96, 2001, paras. 53, 55 and 58.
89. The Saramaka People v. Suriname, Judgment of 28 November 2007, paras. 131, 138.
90. See also Mary and Carrie Dann v. United States., Report No. 75/02, Case 11.1140, December 27, 2002, paras. 124 and 131; and Maya Indigenous Communities of the Toledo District v. Belize, Report No. 96/03, Case 12.053, October 24, 2003, paras. 85, 111-119.
91. Judgment of 28 November 2007, paras. 92-96, 103, 118-123, 128-140.
92. Reports 1998-IV, Judgment of 10 July 1998, para. 44 [citing the Copenhagen Document on the Human Dimension and the Charter of Paris for a New Europe].
93. Application No. 27238/95, Judgment of 18 January 2001, para. 93.
94. Application No. 44158/9820, Judgment of 17 February 2004 [GC], para. 93.
95. L.R. Heifer & A.M. Slaughter, 'Toward a Theory of Effective Supranational Adjudication', 107 The Yale Law Journal (1997) 320 and 323; R. Bernhardt, 'The Convention and Domestic Law', in R. St. J. Macdonald, F. Matscher and H. Petzold (eds.), The European System for the Protection of Human Rights(Boston, 1993), p. 45.
96. H.J. Steiner, 'Individual Claims in a World of Massive Violations:What Role for the Human Rights Committee?', in P. Alston & J. Crawford (eds.), The Future of UN Human Rights Treaty Monitoring(Cambridge, 2000), p. 42.
97. Comm. No.167/1984, Views of 26 March 1990, Annual Report, vol. II, 1990, 1, paras. 32.2-33.
98. AO OC-18/03, Series A, No. 18 (2003). G.L. Neuman, 'Ίmport, Export, and Regional Consent in the Inter-American Court of Human Rights', 19 European Journal of International Law (2008) 120. On the notion upheld by the IACrtHR that non-discrimination is part of ius cogens, he writes:The breath of these conclusions might take one to pause to inquire whether they could be justified on either consensual or suprapositive grounds. That is, has the international community adopted a peremptory norm of the scope the Court identified, or should it do so?... Why is non-discrimination in all matters affecting human rights a ius cogens norm? The Court cited a wide range of international instruments prohibiting discrimination in a variety of contexts, or on the basis of a number of different criteria. But, even taking these instruments at face value, the fact that many forms of discrimination are internationally forbidden does not demonstrate that all forms of discrimination violate a fundamental value of the international community', ibid.
99. G. Pentassuglia, Minority Groups in International Law, supra note 9, p. 111.
100. See e.g. M. Iovane, supra note 79, section II.2.5.
101. It has been usually argued that this type of clause only deals with the 'negative' side of the equation, namely that of disallowing the use of the instrument as a pretext for cutting down higher levels of protection being provided outside that instrument. For a discussion in a different setting, see Liisberg, 'Does the EU Charter of Fundamental Rights threaten the supremacy of Community law? Article 53 of the charter:a fountain of law or just an inkblot?' 04/01 Harvard Jean Monnet Working Papers (2001) 1 et seq.
102. H.J. Steiner, 'Individual Claims in a World of Massive Violations:What a Role for the Human Rights Committee?', supra note 96, p. 39.
103. L.R. Heifer & A.M. Slaughter, 'Toward a Theory of Effective Supranational Adjudication', supra note 95, pp. 356-358; H. Steiner, 'Individual Claims in a World of Massive Violations:What a Role for the Human Rights Committee?', supra note 96, p. 44.
104. See e.g. Sandra Lovelace v. Canada, Comm. No. 24/1977, Views of 30 July 1981, (1981) Annual Report:166; (1983) Annual Report, 248; I. Länsman v. Finland, Comm. No. 511/1992, Views of 26 October 1994, Annual Report, vol. II, 1995, 66; J.I. Länsman v. Finland, Comm. No. 671/1995, Views of 30 October 1996, Annual Report, vol. II, 1997, 191; Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993, U.N. Doc. CCPR/C/70/D/547/1993 (2000); J.G.A. Diergaardt et al. υ. Namibia, Comm. No. 760/1997, Views of 25 July 2000, CCPR/C/69/D/760/ 1996; Waldman v. Canada, Comm. No. 694/1996, Views of 3 November 1999, UN Doc. CCPR/C/67/D/694/1996 (1996).
105. DH and others v. The Czech Republic, Application No. 57325/00, Judgment of 13 November 2007.
106. See e.g. Sawhoyamaxa (Monitoring Compliance with Judgment, 2 February 2007); Saramaka (Judgment of 28 November 2007, para. 214). For details on latest developments, see infra, note 115.
107. G. Pentassuglia, Minority Groups in International law, supra note 9, pp. 109-110.
108. See e.g. Mayagna (Judgment of August 31, 2001, paras. 152-153); Saramaka (Judgment of 28 November 2007, paras. 92-92, 131); Mary and Carrie Dann, Report No 75/02, Case 11.1140, December 27, 2002, paras. 124 and 131; Maya, Report No. 96/03, Case 12.053, October 24, 2003, paras. 85, 111-119; similarly under the ECHR, see Sidiropoulos v. Greece, Reports 1998-IV, Judgment of 10 July 1998, para. 44 [citing the Copenhagen Document on the Human Dimension and the Charter of Paris for a New Europe, both signed by Greece].
109. For example, in its 2007 Advisory Opinion on The United Nations Declaration on the Rights of Indigenous Peoples the AfrCommHPR emphasises the overwhelming support for the UNDIP from the African states (ACHPR/Res.121 (XXXXII) 07 Resolution on the United Nations Declaration on the Rights of Indigenous Peoples, 28 November 2007) and articulates meanings of the instrument that respond to the concerns expressed by some of the three abstaining states from Africa (Burundi, Kenya, and Nigeria).
110. See supra, sections 6 and 7. An earlier version of Article 46 UNDIP was further amended as a result of the African position.
111. S. Errico, 'The Draft UN Declaration on the Rights of Indigenous Peoples:An Overview', 7 Human Rights Law Review (2007) 754.
112. In this sense, it clarifies the basis of some form of corrective justice which is left uncovered or unexplained in ILO Convention 169 and the UNDIP, respectively.
113. The central common law requirement of a continuing occupation of the land has been frequently understood as not amounting to 'an unbroken chain of continuity' or uninterrupted material possession but as the proof of a 'substantial maintenance of the connection' between the people and the land:Delgamuukw v. British Columbia [1997] S.C.R. 1010, para. 153 [quoting from Mabo v. Queensland]; Richtersveld Community and Others v. Alexkor Limited and the Government of the Republic of South Africa,Case No. 488/2001, Judgment of 24 March 2003, para. 23. In Aurelio Cal et al. v. The Attorney General of Belize and the Minister of Natural Resources and Environment, the Supreme Court of Belize upheld a similar standard of proof to establish indigenous property under the Constitution in the face of claims from the state that occupation had not been exclusive and continuous:Claims Nos. 171 and 172 of 2007, Judgment of 18 October 2007, paras. 24 and 61.
114. Judgment of August 31, 2001.
115. With regard to the IACrtHR's latest jurisprudence, see e.g. Mayagna (Sumo) Awas Tίngnί Community v. Nicaragua, Monitoring Compliance with Judgment, 7 May 2008; Sawhoyamaxa Indigenous Community v. Paraguay, Monitoring Compliance with Judgment, 8 February 2008; Yakye Axa v. Paraguay, Monitoring Compliance with Judgment, 8 February 2008.
116. InAurelio Cal et al. v. The Attorney General of Belize and the Minister of Natural Resources and Environment, the Supreme Court of Belize went as far as to characterise the UNDIP as embodying 'general principles of international law', ibid., paras. 131-133.
117. One example of this is the protection of Roma identity under the ECHR (Chapman v UK, Application No. 27238/95, Judgment of 18 January 2001), the protection of the Maroon communities on the same basis as indigenous peoples under the ACHR {Moiwana Village v. Suriname, IACrtHR, Judgment of June 15, 2005, para. 19; The Saramaka People v. Suriname, IACrtHR, Judgment of 28 November 2007, paras. 78-86), or the expanded notion of indigenousness under the African system (Advisory Opinion of the African Commission on Human and Peoples' Rights on The United Nations Declaration on the Rights of Indigenous Peoples, May 2007, paras. 9-13).