The interplay between global and regional human rights systems in the construction of the indigenous rights regime

Human Rights Quarterly

Volumn 32, Issue 4, 2010, Pages 951-979

  Barelli, Mauro ^a  

^a School of Law Middlesex University Hendon Campus   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; INDIGENOUS POPULATION; INTERNATIONAL LAW; POLITICAL DEVELOPMENT;

EID: 78650152736     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2010.0018     Document Type: Article

References (133)

1. See, e.g., Alan Boyle & Chri sti ne Chi nki n, The Maki ng of International Law (2007);
2. Christine Chinkin, Normative Development in the International Legal System, in Commitment and Complica nce: The Role of Non-Bi ndi ng Norms in the International Legal System 21 (Dinah Shelton ed., 2000);
3. Andrew Hurrell, International Law and the Changing Constitution of International Society, in The Role of Law in International Politics: Essays in International Relations and International Law 327 (Michael Byersed., 2001).
4. Contrary to hard law instruments, soft law instruments are not legally binding. The category of soft law includes, among others, interstate conference declarations, UN General Assembly resolutions, codes of conduct, guidelines, and the recommendations of international organizations. Crucially, various soft law instruments will have different legal significance, as well as different degree of effectiveness.
5. On soft law generally, see Christine M. Chinkin, The Challenge of Soft Law: Development and Change in International Law, 38 INT'L & COMP. L.Q. 850 (1989).
6. See Rhona K.M. Smi th, International Huma n Rights 80-82 (3d ed. 2007);
7. Henry Steiner & Philip Alston, International Huma n Rights in Context: Law Politics Morals 779-85 (2d ed. 2008).
8. Chinkin, Normative Development, supra note 1, at 22.
9. See Elsa Stamatopoulou, Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic, 16 Hum. Rts. Q. 58 (1994);
10. Asbjørn Eide, Rights of Indigenous Peoples: Achievement in International Law During the Last Quarter of a Century, 37 Neth. Y.B. Int'l L. 155 (2006).
11. Study of the Problem of Discrimination Against Indigenous Populations, Volume V Conclusions, Proposals and Recommendations, by Jose' R. Martinez Cobo, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, United Nations, U.N. Doc. E/CN.4/Sub.2/1986/7/Add.4. http://www.un.org/esa/socdev/unpfii/en/spdaip.html
12. Study of the Problem of Discrimination Against Indigenous Populations, adopted 7 May 1982, ECOSOC Res. 1982/34, U.N. ESCOR, at 26, U.N. Doc. E/1982/82 (1982).
13. Id.
14. Declaration on the Rights of Indigenous Peoples, adopted 13 Sept. 2007, G.A. Res. 61/295, U.N. GAOR, 61st Sess., U.N. Doc. A/RES/61/295 (2007) [hereinafter UNDRIP].
15. Sub-Commission on Prevention of Discrimination and Protection of Minorities Resolution 1985/22, adopted 29 Aug. 1985, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prev. of Discrim. & Protect. of Min., 38th Sess.
16. The first ILO instrument dealing with indigenous peoples' rights was the Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO No. 107), adopted 26 June 1957, 328 U.N.T.S. 247 (entered into force 2 June 1959) [hereinafter ILO No. 107]. On the assimilationist character of ILO No. 107, see S. Jam es Anaya, Indigenous Peoples in International Law 54-56 (2d ed. 2004). The official decision to revise ILO No. 107 was taken in September 1986 during the Meeting of Experts on the Revision of Convention No. 107. See Lui s Rodrí gues-Piñero, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919-1989), at 284 (2005).
17. Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), adopted 27 June 1989, 1650 U.N.T.S. 383 (entered into force 5 Sept. 1991) [hereinafter ILO No. 169].
18. ILO No. 107 is no longer open to ratification but remains valid for those states that, having previously ratified it, decided not to become parties to ILO No. 169.
19. Draft Declaration on the Rights of Indigenous Peoples, As Agreed upon by Members of the Working Group on Indigenous Populations at its Eleventh Session, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prev. of Discrim. & Protect. of Min., 45th Sess., at 50, U.N. Doc. E/CN.4/Sub.2/1993/29 (1993).
20. U.N. GAOR, Hum. Rts. Comm., 50th Sess., 1314th mtg. 7, U.N. Doc. CCPR/C/21/Rev.1/Add.5 (1994).
21. CERD, instead, focused more prominently on the issue of land rights, regularly requesting that States Parties "recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources." General Recommendation XXIII on Indigenous Peoples, adopted 18 Aug. 1997, U.N. GAOR, Comm. on Elim. of Racial Discrim., 51st Sess., at 122, U.N. Doc A/52/18 (1998).
22. ILO No. 169, supra note 12, has been ratified by twenty states as of July 2010, leaving the majority of indigenous peoples unable to rely on its legal framework.
23. Id. art. 1(3), specifies that "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."
24. See generally Mpazi Sinjela & Robin Ramcharan, Protecting Traditional Knowledge and Traditional Medicine of Indigenous Peoples through Intellectual Property Rights: Issues, Challenges and Strategies, 12 Int'l J. Minority & Group Rts. 1 (2005).
25. Draft United Nations Declaration on the Rights of Indigenous Peoples, adopted 26 Aug. 1994, Sub-Commission Res. 1994/45, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prev. of Discrim. & Protect. of Min., 46th Sess., U.N. Doc. E/CN.4/1995/2 (1994).
26. Robert Ti ckner, Taki ng a Stand: Land Rights to Reconciliation 303 (2001).
27. The working group was established in 1995 in accordance with Commission on Human Rights Resolution 1995/32 and Economic and Social Council Resolution 1995/32. Establishment of a Working Group of the Commission on Human Rights To Elaborate a Draft Declaration in Accordance with Paragraph 5 of General Assembly Resolution 49/214 of 23 December 1994, adopted 3 Mar. 1995, C.H.R. Res. 1995/32, U.N. ESCOR, Comm'n on Hum. Rts., 51st Sess., at 19, U.N. Doc. E/1995/23 (1995);
28. Establishment of a Working Group of the Commission on Human Rights To Elaborate a Draft Declaration in Accordance with Paragraph 5 of General Assembly Resolution 49/214, adopted 25 July 1995, ECOSOC Res. 1995/32, U.N. ESCOR, 1995 Substantive Sess., at 44, U.N. Doc. E/1995/95 (1996). It should be emphasized that indigenous organizations were allowed to participate in the sessions of the WGDD regardless of their consultative status with the Economic and Social Council, thus confirming the decision taken with regard to the WGIP.
29. Draft Declaration on the Rights of Indigenous Peoples, adopted 29 June 2006, H.R.C. Res. 2006/2, U.N. GAOR, Hum. Rts. Council, 1st Sess., U.N. Doc. A/HRC/1/2 (2006).
30. UNDRIP, supra note 9.
31. Mauro Barelli, The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples, 58 Int'l & Comp. L.Q. 957 (2009).
32. See, e.g., Report of the Working Group on Indigenous Populations on Its Second Session, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prev. of Discrim. & Protect. Of Min., 36th Sess., ¶¶ 109-19, U.N. Doc. E/CN.4/Sub.2/1983/22 (1983);
33. Report of the Working Group on the Draft Declaration, U.N. ESCOR, Comm'n on Hum. Rts., 52d Sess., ¶ 28, U.N. Doc. E/CN.4/1996/84 (1996).
34. Working Paper on the Concept of "Indigenous People," by Mrs. Erica-Irene A. Daes, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prev. of Discrim. & Protect. Of Min., Working Grp. on Indigeous Populations, 14th Sess., ¶¶ 35-38, U.N. Doc. E/ CN.4/Sub.2/AC.4/1996/2 (1996).
35. According to Kingsbury, these states employed a positivist approach to the issue, namely one that: treats "indigenous peoples" as a legal category requiring precise definition, so that for particular operational purposes it should be possible to determine, on the basis of that definition, exactly who does or does not have a particular status, enjoy a particular right, or assume a particular responsibility.
36. Benedict Kingsbury, "Indigenous Peoples" in International Law: A Constructivist Approach to the Asian Controversy, 92 Am. J. Int'l L. 414 (1998).
37. For example, India contended that the tribes living in its territory could not be regarded as indigenous given that, among other things, it was not possible to establish whether they actually came before other neighboring communities. Similarly, Bangladesh maintained that: the definition of indigenous peoples should be viewed within the framework of the historical experience of countries in the Western Hemisphere and in Australasia where a colonizing racially distinct people from oversees established settlements and entered into a situation of conflict with the autochthonous population of those countries.
38. Report of the Working Group on Indigenous Populations on its Second Session, supra note 25, ¶¶ 112, 115.
39. Representatives of African indigenous peoples have on more than one occasion expressed their regret at the limited participation of African States. See, e.g., Report of the Working Group on the Draft Declaration, U.N. ESCOR, Comm'n on Hum. Rts., 57th Sess., ¶ 20, U.N. Doc. E/CN.4/2001/85 (2001).
40. Decision on the United Nations Declaration on the Rights of Indigenous Peoples, Assembly/AU/Dec.141 (VII), 8th Sess., Jan. 2007, available at http://www2.ohchr.org/english/issues/indigenous/declaration.htm.
41. See, e.g., Report of the Working Group on the Draft Declaration, supra note 25, ¶ 47.
42. Report of the Working Group on the Draft Declaration, U.N. ESCOR, Comm'n on Hum. Rts., 56th Sess., ¶ 93, U.N. Doc. E/CN.4/2000/84 (1999).
43. For example, Australia noted that the land rights regime envisaged in the document was "arbitrary and impossible to implement," and, furthermore, that it did not take into account the fact that "ownership of land might lawfully vest in others." General Assembly Adopts Declaration on Rights of Indigenous Peoples: "Major Step Forward" Towards Human Rights for All, Says President (7 Sept. 2007), available at http://www.un.org/ News/Press/docs/2007/ga10612.doc.htm.
44. African Charter on Human and Peoples' Rights, adopted 27 June 1981, O.A.U. Doc. CAB/LEG/67/3 Rev.5, 1520 U.N.T.S. 217 (entered into force 21 Oct. 1986).
45. For example, it should be noted that the UNDRIP recognizes that "the situation of indigenous peoples varies from region to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration." UNDRIP, supra note 9, pmbl., ¶ 23.
46. For example, Article 39 of the 1948 Inter-American Charter of Social Guarantees provides that: In those countries where the problem of native population exists, the necessary measures shall be taken to provide the Indian protection and assistance, protecting his life, liberty, and property, and defending him from extermination, and safeguarding him from oppression and exploitation, protecting him from poverty, and providing adequate education. In a less paternalistic way, the same article goes on requesting that specific institutions should be created "to ensure respect for their lands, to legalize their possession by them, and to prevent the invasion of such lands by outsiders." Inter-American Charter of Social Guarantees, adopted by the Ninth International Conference of American States, Final Act, Resolution XXXIX, 29 (1948).
47. For example, a 1972 resolution affirmed that "special protection for indigenous populations constitutes a scared commitment of the [American] states." Resolution Entitled Special Protection for Indigenous Populations, Action to Combat Racism and Racial Discrimination, adopted 14 Mar. 1973, O.A.S. Doc. OEA/Ser.P.A.G/doc.305/72, rev.1.
48. Inter-American Commission on Human Rights, Resolution No. 12/85 (5 Mar. 1985), Case No. 7615.
49. Preparatory Documents for the Draft American Declaration of the Indigenous Peoples, Justification and Recommendation to the General Assembly of the OAS on the Preparation of an Inter-American Instrument on This Matter (Mar. 1989). Included in Situation of the Human Rights of Indigenous Persons and Peoples in the American, Inter-Am Comm'n on Hum. Rts., O.A.S. Doc. OEA/Ser.L/V/II.108 Doc. 62 (20 Oct. 2000).
50. OAS General Assembly Resolution No. 1022/89, adopted 18 Nov. 1989.
51. See Presentation by Dr. Julio Prado Vallejo, Special Rapporteur of the Inter-American Commission on Human Rights in the process of Preparing the Draft Declaration, O.A.S. Doc. OEA/Ser.K/XVIGT/DADIN/doc.103/02 (13 Nov. 2002).
52. Human Rights and Indigenous Issues, adopted 24 Apr. 2001, C.H.R. Res. 2001/57, U.N. ESCOR, Comm'n on Hum. Rts., 57th Sess., 76th mtg., U.N. Doc. E/CN.4/RES/2001/57 (2001).
53. As of today, the only version of the instrument voted on by the Inter-American Commission is the 1997 Proposed American Declaration on the Rights of Indigenous Peoples, approved 26 Feb. 1997, Inter-Am. Comm'n on Hum. Rts., 95th Regular Sess., O.A.S. Doc. OEA/Ser/L/V/.II.95, Doc.6.
54. Proposed American Declaration on the Rights of Indigenous Populations, adopted 7 June 1999, O.A.S. Doc. OEA/Ser.P, AG/RES. 1610 (XXIX-O/99).
55. See, e.g., Bartolomé de las Casas, A Short Acc ount of the Destruction of the Indi es (2004).
56. Frans Viljoen, International Huma n Rights Law in Africa 280 (2007).
57. Indeed, as Viljoen put it, the African traditional denial of the existence of indigenous peoples derives from the fear that this "will expose the fragility of the artifice of the African nation state." Id. at 279.
58. It has been aptly observed that the gradual involvement of African human rights institutions in indigenous issues was "largely a regional manifestation of the developments taking place at [sic] international law." Kealeboga N. Bojosi & George Mukundi Wachira, Protecting Indigenous Peoples in Africa: An Analysis of the Approach of the African Commission on Human and Peoples' Rights, 6 Afr. Hum. Rts. L.J. 382, 382 (2006).
59. Resolution on the Rights of Indigenous Peoples' Communities in Africa, adopted 6 Nov. 2000, ACHPR/Res. 51(XXVIII)00, available at http://www.achpr.org/ english/-doc-target/documentation.html?./resolutions/resolution56-en.html.
60. The WGIPC had to carry out three distinctive investigations: first, examining the concept of indigenous populations/communities in Africa; second, studying the implications of the African Charter on the well being of indigenous populations/communities; and third, considering appropriate recommendations for the monitoring and protection of the rights of indigenous populations/ communities in the region. Id.
61. Report of the Africa n Comm i ssi on's Working Group of Experts on Indigenous Populations/Communities 8 (2005), available at http://www.iwgia.org/ sw2186.asp.
62. In 2005, for example, commenting on the state report produced by Cameroon, the African Commission expressed its concern with regard to the situation "of vulnerable groups in general, [and] in particular that of street children, of indigenous populations/communities and human rights defenders." Concluding Observations on the Periodic Report of Cameroon, Afr. Comm'n on Hum. & Peoples' Rts., 39th Ordinary Sess., 2005, ¶ 14. On another occasion, it took note of the positive steps taken by South Africa with regard to the recognition of the rights of indigenous populations. Concluding Observations and Recommendations on the First Periodic Report of the Republic of South Africa, 38 Ordinary Sess., 2005, ¶ 34. Finally, while commenting on the state report prepared by Uganda in 2006, the African Commission expressed its concern with "the exploitation, the discrimination and the marginalization of indigenous populations." Accordingly, it recommended that Uganda "ensure that the rights of indigenous people and socially disadvantaged are respected." Concluding Observation on the Second Periodic Report of the Republic of Uganda, Afr. Comm'n on Hum. & Peoples' Rts., 40th Ordinary Sess., 2006, ¶¶ 23, 34.
63. See International Work Group for Indigenous Affairs, available at http://www.iwgia.org/sw25311.asp.
64. The first mandate following the adoption of the report was included in: Resolution on the Adoption of the "Report of the African Commission's Working Group on Indigenous Populations/Communities," adopted 20 Nov. 2003, Afr. Comm'n on Hum. & Peoples' Rts., 34th Ordinary Sess. Later, the mandate was renewed on two occasions: in 2005 and 2007.
65. All the pertinent resolutions can be found at International Work Group for Indigenous Affairs, Resolutions & Official Documents, available at http://www.iwgia.org/sw8774.asp.
66. Id.
67. For instance, it conducted several "research and information country visits," notably in Burundi, Libya, and the Republic of Congo in 2005, the Central African Republic and Uganda in 2006, and the Republic of Gabon in 2007.
68. See the various Progress Reports for the ACHPR Working Group on Indigenous Populations/Communities, available at http://www.iwgia.org/sw2073. asp.
69. Progress Report for the ACHPR Working Group on Indigenous Populations/Communities, Inter-sessional period between the 39th and 40th ordinary sessions of the ACHPR.
70. Resolution on the United Nations Declaration on the Rights of Indigenous Peoples, adopted 28 Nov. 2007, ACHPR/Res.121 (XXXXII)07, available at http://www.achpr.org/english/resolutions/resolution121-en.htm
71. See International Workgroup for Indigenous Affairs (IGWA), The Indigenous World 2008 (2008).
72. One should also mention the small number of indigenous populations of Russia and other groups living in Eastern Europe such as the Tartars of Ukraine, who might be recognized as indigenous in the near future. In this regard, it should be noted that some authors have argued that "perhaps it is time that 'Europe' elaborated a treaty on indigenous rights: especially in view of the considerable enlargement of the number of indigenous and 'tribal' groups in the Council's sphere as a result of the accession of the Russian Federation and other states of the CIS." Patrick Thornberry & María Amor Martín Estéba nez, Minority Rights in Europe 656 (2004).
73. As was discussed above, for example, the UN Human Rights Committee has regularly promoted a dynamic reading of ICCPR Article 27 so that, despite being expressed in terms of minority rights, the article has been regularly invoked to protect the rights of indigenous peoples.
74. The Advisory Committee produces country-specific opinions adopted following a monitoring procedure. This procedure involves the examination of state reports and other sources of information as well as meetings on the spot with governmental interlocutors, national minority representatives, and other relevant actors. These are then sent to the Committee of Ministers, which will issue its recommendations.
75. See, e.g., Advisory Committee on the Framework Convention for the Protection of National Minorities: Opinion on Finland, ACFC/INF/OP/I(2001)002, 2000, ¶¶ 21-29;
76. Advisory Committee on the Framework Convention for the Protection of National Minorities: Opinion on Norway, ACFC/INF/OP/I (2003)003, 2002, ¶¶ 9, 19;
77. Advisory Committee on the Framework Convention for the Protection of National Minorities: Opinion on Russia, ACFC/INF/OP/I (2003)005, 2002, ¶ 26;
78. Advisory Committee on the Framework Convention for the Protection of National Minorities: Opinion on Sweden, ACFC/INF/ OP/I(2003)006, 2003, ¶ 18.
79. Advisory Committee on the Framework Convention for the Protection of National Minorities: Opinion on Sweden, supra note 62, ¶ 30;
80. Advisory Committee on the Framework Convention for the Protection of National Minorities: Second Opinion on Sweden, ACFC/OP/II(2007)006, ¶ 68;
81. Advisory Committee on the Framework Convention for the Protection of National Minorities: Opinion on Finland, supra note 62, ¶ 22;
82. Advisory Committee on the Framework Convention for the Protection of National Minorities, Second Opinion on Finland, ACFC/OP/II(2006)003, ¶ 49;
83. Advisory Committee on the Framework Convention for the Protection of National Minorities, Opinion on Russia, supra note 62, ¶ 49;
84. Advisory Committee on the Framework Convention for the Protection of National Minorities, Second Opinion on the Russian Federation, adopted 11 May 2006, ACFC/OP/II(2006)004, ¶¶ 96-106.
85. Advisory Committee on the Framework Convention for the Protection of National Minorities, Opinion on Sweden, supra note 62, ¶ 63.
86. In particular, title V of the EU Treaty (Consolidated Version 2002) refers to the establishment of the European Common Foreign and Security Policy (CFSP). More specifically, Article 11 affirms that the objectives of the CFSP shall be: developing and consolidating democracy and the rule of law, and respect for human rights and fundamental freedoms. In addition, Article 177 of the EC Treaty (Article 130u of the EU Treaty) establishes the three priority areas for development cooperation of the European Community. These are sustainable economic and social development of the developing countries; their smooth and gradual integration into the world economy; and the fight against poverty. Generally, community policy in this area is also expected to contribute to the general objectives of developing and consolidating democracy and the rule of law, and respecting human rights and fundamental freedoms.
87. For an account of the ethical dimension of the Foreign Policy of the EU see Urfan Khali q, Ethical Dimensions of the Foreign Policy of the European Uni on: A Legal Appraisal (2008);
88. see also Values and Principles in European Union Foreign Policy (Sonia Lucarelli & Ian Manners eds., 2006).
89. Development Council Resolution of 30 Nov. 1998 on Indigenous Peoples within the Framework of the Development Cooperation of the Community and the Member States, 13461/98.
90. European Commission, Programming Guide for Strategy Papers (Jan. 2006), available at http://ec.europa.eu/development/icenter/repository/F47-indigenous- peoples-fin-en.pdf.
91. Communication from the Commission to the Council and The European Parliament the European Union's Role in Promoting Human Rights and Democratisation in Third Countries, COM (2001) 252 final (8 May 2001).
92. Id. at 29.
93. Council & Parliament Regulation 1889/2006, Establishing a Financing Instrument for the Promotion of Democracy and Human Rights Worldwide, art. 2, 2006 O.J. (L 386) (EC).
94. Despite the lack of a definition in the UNDRIP, a number of working definitions have been regularly used in UN settings in order to identify indigenous groups. Note on Criteria Which Might Be Applied When Considering the Concept of Indigenous Peoples by Ms. Erica-Irene Daes, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prev. of Discrim. & Protect. Of Min., Working Grp. on Indigeous Populations, 13th Sess., U.N. Doc. E/CN.4/Sub.2/AC.4/1995/3 (1995);
95. Working Paper on the Concept of "Indigenous People," by Mrs. Erica-Irene A. Daes, supra note 26.
96. Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities, supra note 51.
97. Id. at 92.
98. Id. Acknowledging the complications that could emerge as a consequence of its findings, however, the WGIPC also specifies that the term indigenous peoples should not be "misused as a chauvinistic term with the aim of achieving rights and positions over and above other ethnic groups or members of the national community." Id. at 102.
99. Id. at 89, 90.
100. Id.
101. Moiwana Community v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 124 (15 June 2005); Saramaka People v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 172, (28 Nov. 2007). For a broad discussion of the theme see Gerald Torres, Indigenous Peoples, Afro-Indigenous Peoples and Reparations, in Reparations for Indigenous Peoples: International & Comparative Perspectives 117 (Federico Lenzerini ed., 2008).
102. Saramaka People, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶¶ 84, 96.
103. Among others, the representative of Venezuela proposed the following wording: "Indigenous peoples have a right to self-determination. By virtue of that right they have the right to autonomy, or self-government in matter relating to their internal and local affairs," Report of the Working Group on the Draft Declaration, U.N. ESCOR, Comm'n on Hum. Rts., 53d Sess., ¶ 318, U.N. Doc. E/CN.4/1997/102 (1996).
104. Namibia: Amendments to Draft Resolution A/C.3/61/L.18/Rev.1, U.N. GAOR, Third Comm., 61st Sess., U.N. Doc. A/C.3/61/L.57/Rev.1 (2006) (introduced by Namibia on behalf of the African Group of States). The Third Committee of the UN General Assembly adopted the resolution by a vote of 82 in favor and 67 against (with 25 abstentions).
105. Decision on the United Nations Declaration on the Rights of Indigenous Peoples, supra note 30.
106. Id. ¶ 6. The other matters of concern were: the definition of indigenous peoples; ownership of land and resources; and establishment of distinct political and economic institutions.
107. Id. ¶ 3.
108. Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted 14 Dec. 1960, G.A. Res. 1514 (XV), U.N. GAOR, 15th Sess., at 66, U.N. Doc. A/4684 (1961).
109. Decision on the United Nations Declaration on the Rights of Indigenous Peoples, supra note 30, ¶ 2.
110. Advisory Opinion of the African Commission on Human and Peoples' Rights on the United Nations Declaration on the Rights of Indigenous Peoples, adopted May 2007, Afr. Comm'n on Hum. & People's Rts., 41st Ord. Sess., available at http://www.achpr.org/english/Special%20Mechanisms/Indegenous/ Advisory%20opinion-eng.pdf.
111. Id. ¶ 27.
112. Id. ¶ 6.
113. "[N]othing in this Declaration may be .. construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States." Id. art. 46.
114. Article 21 of the Convention reads as follows: (1) Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society; (2) No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law; (3) Usury and any other form of exploitation of man by man shall be prohibited by law. American Convention on Human Rights, signed 22 Nov. 1969, art. 21, O.A.S. Doc. OEA/Ser.L/V/II.23, doc. 21, rev. 6 (1979), O.A.S.T.S. No. 36, 1144 U.N.T.S. 143 (entered into force 18 July 1978).
115. Barelli, The Role of Soft Law in the International Legal System, supra note 24.
116. Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua, Inter-Am. Ct. H.R. (ser. C) No. 79 (31 Aug. 2001).
117. Comunidad Indigena Yakye Axa v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 125, ¶¶ 124, 137 (17 June 2005); Sawhoyamaxa Indigenous Cmty. v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 146, ¶¶ 118-21 (29 Mar. 2006); Saramaka People v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶¶ 87-96 (28 Nov. 2007).
118. In the words of the IACHR: [A]mong indigenous peoples there is a communitarian tradition regarding a communal form of collective property of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community. Indigenous groups, by the fact of their very existence, have the right to live freely in their own territory; the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. 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. Mayagna (Sumo) Awas Tingni Cmty., Inter-Am. Ct. H.R. (ser. C) No. 79, ¶ 149.
119. Sawhoyamaxa Indigenous Cmty., supra note 93, ¶ 128.
120. Comunidad Indigena Yakye Axa, Inter-Am. Ct. H.R. (ser. C) No. 125, ¶ 143.
121. Id. ¶ 144.
122. Accordingly, the IACHR held that "the necessity of legally established restrictions will depend on whether they are geared toward satisfying an imperative public interest." Therefore, it would be insufficient "to prove, for example, that the law fulfils a useful or timely purpose." Furthermore, the Court explained that the criterion of proportionality is "based on the restriction being closely adjusted to the attainment of a legitimate objective, interfering as little as possible with the effective exercise of the restricted right." Finally, the IACHR stated that "for the restrictions to be compatible with the Convention, prethey must be justified by collective objectives that, because of their importance, clearly prevail over the necessity of full enjoyment of the restricted right." This is in line with the general prescription of Article 21(1) according to which the law may subordinate the use and enjoyment of property to the interest of society. Id. ¶ 145.
123. Id. ¶ 146.
124. Id. ¶ 147.
125. Id. ¶ 148.
126. Sawhoyamaxa Indigenous Cmty, supra note 93, ¶131.
127. Id.
128. Comunidad Indigena Yakye Axa, supra note 93, ¶ 149.
129. Saramaka People v. Suriname, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 126 (28 Nov. 2007).
130. The IACHR specified that the resources to be protected are those "necessary for the very survival, development and continuation of [indigenous peoples'] way of life." However, activities related to resources that are not necessary for the survival of indigenous peoples will nevertheless fall within the scope of Article 21 if they have important repercussions on resources that are necessary for the survival of these peoples. Saramaka People, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 103.
131. Id. ¶ 126.
132. It should be noted that a recent decision of the African Commission on Human and Peoples' Rights concerning, among others, the land rights of an indigenous community living in Kenya fully endorsed the jurisprudence of the IACHR.
133. See Centre for Minority Rights Development (Kenya) v. Kenya, Afr. Comm'n on Hum. & Peoples' Rts., 276/2003 (4 Feb. 2010), available at http://www.escr-net.org/usr-doc/Endorois-Decision.pdf.