Towards a jurisprudential articulation of indigenous land rights

European Journal of International Law

Volumn 22, Issue 1, 2011, Pages 165-202

  Pentassuglia, Gaetano ^a  

^a UNIVERSITY OF LIVERPOOL   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79954491497     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chr005     Document Type: Article

References (94)

1. Adopted on 27 June 1989, C169, available at: www.ilo.org; as of 6 March 2010 it had been ratified by 20 countries.
2. UN Doc. A/Res/61/295. Adopted on 13 Sept. 2007 by a vote of 143 in favour, 4 against (Australia, Canada, New Zealand, and US), and 11 abstentions.
3. New Basic Text for Final Revisions, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples, Eleventh Meeting of Negotiations, GT/DADIN/doc.334/08, 18 Apr. 2008.
4. E.g., in Aerial Herbicide Spraying (Ecuador v. Colombia), filed with the International Court of Justice in Mar. 2008, Ecuador claims that Colombia's spraying of chemical herbicides has caused damage to Ecuadorian territory and the (mainly indigenous) local population living in the affected areas, thereby violating obligations relating to environmental protection and human rights.
5. The following does not address specific questions of cultural property and traditional knowledge: for commentary see some of the contributions to the present symposium.
6. 'The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised.' The Committee on the Elimination of Racial Discrimination (CERD) has interpreted Art. 5(d)(v) of the International Convention on the Elimination of All Forms of Racial Discrimination, available at: www.ilo.org, to include indigenous land rights (e.g., Concluding Observations on Guatemala, UN Doc. CERD/C/GTM/CO/11, 15 May 2006, at para. 19).
7. See also General Comment No. 21 on the right of everyone to take part in cultural life (Art. 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights): Committee on Economic, Social and Cultural Rights, UN Doc. E/C.12/GC/21, 21 Dec. 2009, at para. 36.
8. Swepston, 'A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989', 15 Oklahoma City U L Rev (1990) 677, at 696.
9. See, e.g., ILO Governing Body, Representation under Article 24 of the ILO Constitution: Guatemala, GB. 299/6/1, 299th Session, June 2007.
10. Working Group on the draft declaration on the rights of indigenous peoples, E/CN.4/2004/81, at paras 110-112, 114-115.
11. Art. 28 DRIP, for instance, understands compensation as coming in the form of alternative lands 'or' monetary compensation, 'or other appropriate redress'.
12. UN GA, GA/10612, Sixty-first General Assembly Plenary 107th & 108th Meetings, 13 Sept. 2007, interventions by Australia, Canada, New Zealand, the US, the UK, Norway, and Sweden.
13. Francioni, 'Is International Law Ready to Ensure Redress for Historical Injustices?', in F. Lenzerini (ed.), Reparations for Indigenous Peoples: International & Comparative Perspectives (2008), at 27, 43.
14. Errico, 'The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview', 7 Human Rts L Rev (2007) 741, at 754.
15. Art. 32(2). Aside from cases where prior consent is required by national legislation, CERD seems to have favoured a similar line in recent practice notwithstanding the arguably stronger language of Recommendation XXIII: Indigenous Peoples, UN Doc. CERD/C/51/misc13/Rev. (1997), at para. 4(d).
16. G. Pentassuglia, Minority Groups and Judicial Discourse in International Law: A Comparative Perspective (2009).
17. Judgment of 31 Aug. 2001, Series C No. 79.
18. See, e.g., Moiwana Village v. Suriname, Judgment of 15 June 2005, Series C No. 124; Sawhoyamaxa Indigenous Community v. Paraguay, Judgment of 29 Mar. 2006, Series C No. 146; on historic claims see infra, sect. 3B.
19. The Saramaka People v. Suriname, Judgment of 28 Nov. 2007, Series C No. 172, at para. 115. The same rationale applies, a fortiori, in the event that the community becomes displaced as a result of violent attacks on its members: see Moiwana Village v. Suriname, Interpretation of the Judgment on the Preliminary Objections, Merits and Reparations, Judgment of 8 Feb. 2006, Series C No. 145, at para. 19.
20. Yakye Axa Indigenous Community v. Paraguay, Judgment of 17 June 2005, Series C No. 125, at paras 146, 217.
21. See the IACHR's decision in Mary and Carrie Dann v. United States, Report No. 75/02, Case 11.1140, 27 Dec. 2002, at para. 167.
22. As a follow-up on Yakye Axa see, e.g., Interpretation of the Judgment of Merits, Reparations and Costs, Judgment of 6 Feb. 2006, Series C No. 142, at para. 26.
23. Pasqualucci, 'International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American Court on Human Rights in the Light of the United Nations Declaration on the Rights of Indigenous Peoples', 27 Wisconsin Int'l LJ (2009) 51, at 79-91.
24. E.g., this type of link lies at the core of much of the HRC case law on Art. 27 ICCPR; a comparable connection is central to indigenous land rights in Canadian case law: see infra, sect. 7.
25. The presumption being that the second scenario as reflected in Yakye Axa will tend to favour the group.
26. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UN Doc. E/CN.4/2003/90, 21 Jan. 2003, at paras 36, 73.
27. See, e.g., 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.
28. Art. 31(3)(c) VCLT refers to 'any relevant rules of international law applicable in the relations between the parties'.
29. App. No. 15318/89, Loizidou v. Turkey (Preliminary Objections), 20 EHRR (1995) 99, at para. 71.
30. See generally Mowbray, 'The Creativity of the European Court of Human Rights', 5 Human Rts LRev (2005) 57.
31. AO OC-16/99, Series A No. 16, at para. 113, available at: www.corteidh.or.cr.
32. Comm. No. 1457/2006, Views of 27 Mar. 2009, UN Doc. CCPR/C/95/D/1457/2006.
33. The HRC noted that the Art. 17 complaint (private and family life) raised issues which were related to Art. 27; see also Hopu and Bessert v. France, Comm. No. 549/1993, Views of 29 July 1997, (1997) II Annual Report 70.
34. See, e.g., Apirana Mahuika et al. v. New Zealand, Comm. No. 547/1993, Views of 27 Oct. 2000, UN Doc. CCPR/C/70/D/541/1993, at para. 9.2.
35. Comm. No. 1457/2006, Views of 27 Mar. 2009, UN Doc. CCPR/C/95/D/1457/2006, at para. 7.6.
36. See, e.g., Apirana Mahuika et al. v. New Zealand, Comm. No. 547/1993, Views of 27 Oct. 2000, UN Doc. CCPR/C/70/D/541/1993.
37. On the process of seeking consent see HRC, Concluding Observations on Panama, UN Doc. CCPR/C/PAN/CO/3, 17 Apr. 2008, at para. 21.
38. ACHPR/Res 51 (XXVIII) 00 Resolution on the Rights of Indigenous Populations/Communities in Africa (2000).
39. Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities, submitted in accordance with the 'Resolution on the Rights of Indigenous Populations/Communities in Africa', IWAGIA (Copenhagen) and ACHPR (Banjul) (2005) (hereinafter, '2003 AWGIPC Report').
40. See also ILO/ACHPR, Overview Report of the Research Project by the International Labour Organization and the African Commission on Human and Peoples' Rights on the Constitutional and Legislative Protection of the Rights of Indigenous Peoples in 24 African Countries (2009) (hereinafter, '2009 ILO/ACHPR Report').
41. For a traditional understanding of peoples' rights see J. Crawford (ed.), The Rights of Peoples (1988).
42. Comm. No. 75/92 (1995).
43. The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, Comm. No. 155/96 (2001).
44. ACHPR/Res 121 (XXXXII) 07 Resolution on the United Nations Declaration on the Rights of Indigenous Peoples, 28 Nov. 2007.
45. Advisory Opinion of the African Commission on Human and Peoples' Rights on The United Nations Declaration on the Rights of Indigenous Peoples, May 2007, at paras 32-35.
46. See also F. Viljoen, International Human Rights Law in Africa (2007), at 285.
47. Comm. 276/2003 (2009).
48. A reinforced public interest, proportionality-based test applies to Art. 14 restrictions involving indigenous property rights, while the requirement that such restrictions be imposed 'in accordance with the law' essentially draws on the Saramaka test and extends to the right to development (ibid., at paras 227-228). At one juncture, the ACHPR seems ambiguously to point to a duty to both obtain and seek indigenous consent (at para. 226); still, the general thrust of the argument is defined by the approach to consultation/consent in Saramaka.
49. A similar line transpires from later Inter-American case law.
50. E.g., in the Ogoni case the ACHPR does not specifically refer to the Ogonis as 'indigenous peoples' or 'minority'. See also Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Comm. 276/2003 (2009), at para. 187.
51. See, e.g., Benvenisti and Downs, 'National Courts, Domestic Democracy, and the Evolution of International Law', 20 EJIL (2009) 59.
52. Gilbert, 'Historical Indigenous Peoples' Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title', 56 Int'l & Comp LQ (2007) 583.
53. ILDC 698 (KE 2006), available at: www.oxfordlawreports.com.
54. Claims Nos. 171 and 172 of 2007, Judgment of 18 Oct. 2007.
55. Jaime Hans Bustamante Johnson, EXP. No. 03343-2007-PA/TC, Lima.
56. For a remarkably similar line, see the judgment of the Constitutional Court of Colombia in the Álvaro Bailarín case, Sentencia T-769/2009, at 26-35 (n15, 16, 18, 20, 21, 24), available at www.corteconstitutional.gov.co.
57. Judgment of the Sapporo District Court, Civil Division No. 3, 27 Mar. 1997, in 38 ILM (1999) 397.
58. For an account see McGrogan, 'A Shift in Japan's Stance on Indigenous Rights, and Its Implications', in G. Guliyeva and G. Pentassuglia (eds), 'Minority Groups Across Legal Settings: Global and Regional Dimensions', Special Issue, 17:2 Int'l J Minority & Group Rts (2010) 355.
59. Sagong Tasi and Ors v. Negeri Kerajaan Selangor and Ors [2002] 2 CLJ 543.
60. The ruling was upheld by the Court of Appeal of Malaysia in 2005, which additionally upheld punitive damages: Kerajaan Negeri Selagor v. Sagong Bin Tasi [2005] 6 MLJ 289.
61. GR No. 135385, 6 Dec. 2000.
62. See, e.g., Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, Comm. No. 167/1984, Views of 26 Mar. 1990, Annual Report, vol. II, 1990, 1, at para. 9.3; Apirana Mahuika et al. v. New Zealand, Comm. No. 547/1993, Views of 27 Oct. 2000, UN Doc. CCPR/C/70/D/541/1993, at para. 9.4.
63. Delgamuukw v. British Columbia, [1997] SCR 1010, at paras 152-154.
64. See, e.g., Delgamuukw v. British Columbia [1997] SCR 1010; Haida Nation v. British Columbia (Minister of Forests) [2004] SCC 73; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) [2004] SCC 74; Mikisew Cree First Nation v. Canada [2005] SCR 388.
65. See, respectively, Alexkor Ltd and the Government of South Africa v. The Richtersveld Community and Others, CCT 19/03 (2003), Judgment of 14 Oct. 2003 and Roy Sesana and Ke/wa Setlohobogwa v. The Attorney General, Misca No. 52 of 2002 (13 Dec. 2006), both available at: www.saflii.org/.
66. Sagong Tasi and Ors v. Negeri Kerajaan Selangor and Ors [2002] 2 CLJ 543; The Attorney General of Belize and the Minister of Natural Resources and Environment, Claims Nos. 171 and 172 of 2007, Judgment of 18 Oct. 2007, available at: www.belizelaw.org/.
67. With regard to Botswana see, though, the recent decision by the High Court in Matsipane Mosetlhanyane and Gakenyatsiwe Matsipane & Further Applicants v. Attorney General of Botswana, MAHLB-000393-09, Judgment of 21 July 2010, available at: www.saflii.org/; the decision was appealed in Sept. 2010.
68. See, e.g., The Richtersveld Community and Others v. Alexkor Limited and the Government of the Republic of South Africa, Case No. 488/2001, Judgment of 24 Mar. 2003, at para. 23, available at: www.saflii.org/.
69. 1992 175 CLR 1, at para. 66.
70. Yorta Yorta Aboriginal Community v. Victoria [1998] FCA 1606.
71. UN Doc. CERD/C/AUS/CO/15-17, 27 Aug. 2010, at para. 18. For similar concerns see also the recent report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people on the situation of indigenous peoples in Australia, UN Doc. A/HRC/15/ (2010), at para. 26.
72. UN Doc. CERD/C/AUS/CO/14, 14 Apr. 2005, at para. 16.
73. For an overview of the case law and a comparison with the more protective Canadian jurisprudence see Erueti, 'The Demarcation of Indigenous Peoples' Traditional Lands: Comparing Domestic Principles of Demarcation with Emerging Principles of International Law', 23 Arizona J Int'l & Comp L (2006) 543, at 575-578.
74. See, e.g., Anaya and Wiessner, 'The UN Declaration on the Rights of Indigenous Peoples: Towards Re-empowerment', Jurist Legal News & Development, 4 Dec. 2007, available at: http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-of-indigenous.php.
75. D'Aspremont, 'Softness in International Law: A Self-Serving Quest for New Legal Materials: A Rejoinder to Tony D'Amato', 20 EJIL (2009) 911.
76. See, e.g., Allen, 'The UN Declaration on the Rights of Indigenous Peoples and the Limits of the International Legal Project in the Indigenous Context', in S. Allen and A. Xanthaki (eds), Reflections on the United Nations Declaration on the Rights of Indigenous Peoples (2010) 225.
77. For further discussion of access to justice see Francioni, 'Access to Justice, Denial of Justice and International Investment Law', 20 EJIL (2009) 729, at 738-743.
78. For overlaps with, or wider understandings of, cultural rights see, e.g., the piece by S. Wiessner as part of the present symposium and the first report of the UN independent expert in the field of cultural rights, UN Doc. A/HRC/14/36, 22 Mar. 2010. For a word of caution on 'culture' in the human rights discourse, and its allegedly negative impact on indigenous self-determination, see the contribution by K. Engle to this collection. The danger of essentialized representations of indigenous (cultural) rights that she evokes could be usefully contrasted with a more flexible view reflected in international jurisprudence, whereby the common theme of indigenous identity is tackled from multiple human rights perspectives which impact on legal protection within and outside the group.
79. While this line of thinking has so far affected non-European regional systems, such as the Inter-American and African ones, and partly global regimes, such as the ICCPR, parallel developments under the ECHR, though less forthcoming, are not to be excluded. On a broad notion of 'possession' see App. Nos 8803-8811/02, 8813/02 and 8815-8819/02, Doǧan and others v. Turkey, Judgment of 29 June 2004; in the admissibility decision in App. No. 39013/04, Handölsdalen Sami Village and Others v. Sweden, 17 Feb. 2009, at paras 46-56; the ECtHR rejected the Sami villages' specific property claim on narrow evidential grounds based on domestic law, but did not appear to rule out that the Sami right to reindeer herding may constitute 'possession' within the meaning of Art. 1 of Protocol 1.
80. Both cases are available at: www.echr.coe.int/echr.
81. Boyle, 'Some Reflections on the Relationship of Treaties and Soft Law', 48 Int'l & Comp LQ (1999) 901.
82. The case may be further complicated by the lack of ratification of the relevant human rights treaty by a particular state and/or the failure by that state to accept the competence of the relevant monitoring body (see, e.g., the US in respect of the ACHR and the IACrtHR's jurisdiction).
83. Judgment of 20 Feb. 1969 [1969] ICJ Rep 3, at 43.
84. For some major policy shifts in favour of the DRIP see 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 LQ (2009) 957, at 982.
85. While the DRIP as a whole recently won greater political support from countries that voted against it, the extent to which the DRIP's land rights provisions will be actually upheld by the judiciary in land disputes brought up in the relevant common law jurisdictions remains to be seen.
86. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) (Merits), Judgment of 27 June 1986 [1986] ICJ Rep 14.
87. A key issue is whether specific domestic developments over issues of property and natural resources (where available) can be said to have occurred out of a sense of a distinctive legal obligation (opinio iuris) under customary international law.
88. On divergencies in domestic practice see Charters, 'Developments in Indigenous Peoples' Rights under International Law and their Domestic Implications', 21 New Zealand U LRev (2005) 511, at 526 ff.
89. For a different take on domestic practice see S. Wiessner in this issue.
90. Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, UN Doc. A/HRC/9/9 (2008), at para. 54.
91. Shany, 'No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary', 20 EJIL (2009) 73, at 80-81.
92. A.-M. Slaughter, A New World Order (2004), at 79-81.
93. Contra S. Wiessner in this issue.
94. Indigenous and Tribal Peoples' Rights over Their Ancestral Lands and Natural Resources, OEA/Ser.L/V/II., Doc. 56/09 (2010), available at www.cidh.org.