Part I The UNDRIP’s Relationship to Existing International Law, Ch.3 Relationship to Human Rights, and Related International Instruments

2018 ◽  
Author(s):  
Scheinin Martin ◽  
Åhrén Mattias
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Minority Groups ◽  
Indigenous Rights ◽  
Specific Reference ◽  
Political Rights ◽  
Rights Discourse ◽  
United Nations Declaration ◽  
Human Rights Norms ◽  
International Instruments

This chapter analyses how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) fits within the broader picture of international legal instruments, with specific reference to related human rights norms. In many respects, the general approach the UNDRIP takes towards indigenous rights is natural. Largely from the very day indigenous peoples' representatives started to address the UN in order to claim recognition of and respect for their rights, the focus of such claims has been on allowing indigenous peoples the possibility to preserve, maintain, and develop their own distinct societies, existing side by side with the majority society. In other words, political rights — or sovereign rights — have always been at the forefront of the indigenous rights regime. In that way, indigenous peoples' rights distinguish themselves from those that apply to minority groups that are primarily individual rights. Thus, when placing emphasis on peoples' rights, the UNDRIP follows in the tradition of the indigenous rights discourse in general, as reflected in Article 3 of the Declaration.

scholarly journals Evolving Legal Protections for Indigenous Peoples in Africa: Some Post-UNDRIP Reflections

2018 ◽  
Vol 26 (3) ◽  
pp. 339-365
Author(s):  
Derek Inman ◽  
Dorothée Cambou ◽  
Stefaan Smis
Keyword(s):  
Human Rights ◽  
Informed Consent ◽  
Indigenous Peoples ◽  
Regional Level ◽  
Self Determination ◽  
African Continent ◽  
African Context ◽  
United Nations Declaration ◽  
Human Rights Norms ◽  
The Right

Prior to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) many African states held a unified and seemingly hostile position towards the UNDRIP exemplified by the concerns outlined in the African Group's Draft Aide Memoire. In order to gain a better understanding of the protections offered to indigenous peoples on the African continent, it is necessary to examine the concerns raised in the aforementioned Draft Aide Memoire and highlight how these concerns have been addressed at the regional level, effectively changing how the human rights norms contained within the UNDRIP are seen, understood and interpreted in the African context. The purpose of this article is to do just that: to examine in particular how the issue of defining indigenous peoples has been tackled on the African continent, how the right to self-determination has unfolded for indigenous peoples in Africa and how indigenous peoples' right to free, prior and informed consent has been interpreted at the regional level.

scholarly journals ‘Another Tool in the Kete’: Māori Engaging with the International Human Rights Framework

2021 ◽  
Author(s):  
◽  
Hannah Mackintosh
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Indigenous Peoples ◽  
Local Level ◽  
Indigenous Rights ◽  
Indigenous Communities ◽  
Development Project ◽  
Methodological Foundation ◽  
Rights Discourse ◽  
The Way

<p>In this study, I consider how the universal concept of human rights is being engaged with and interpreted by Māori communities in Aotearoa/New Zealand. The rights of indigenous peoples have recently been formally defined within United Nations forums and cemented in the United Nations Declaration on the Rights of Indigenous Peoples. This research argues that the indigenous rights movement indicates a shift in many of the debates that have dominated the global rights rhetoric to a more evolutionary concept of human rights. It suggests that engaging with these debates has the potential to open up new dialogue within the human rights discourse for alternative ways of considering human rights at the global level. This will impact the way that rights-based approaches to development are implemented, engaged with and utilised at the local level. However, currently little is known about the ways in which indigenous communities are using human rights at the local level. This work focuses on a successful rights-based community development programme as a case study. Through this exploration, I consider the levels of empowerment and the positive impacts that resulted from increased knowledge of human rights in the region. I further present some of the principles inherent in the successful application of a rights-based development project. From a methodological perspective, it provides an exploration into the way that research involving indigenous communities is conducted. As a Pākehā researcher working with Māori communities I had to take extra care to ensure that this research had an ethically sound methodological foundation. Taking a critical perspective, I consider some of the political and social implications of being a non-indigenous researcher working with indigenous communities. This work illustrates that highly ethical, critical methodological approaches are essential to any development work. Overall, the research proposes that Māori concepts of human rights are placed within a distinct cultural framework. Human rights are understood and given meaning through Kaupapa Māori, tikanga and whakapapa. They are also framed within the experiences of a colonial history. This research provides an example of how this universal framework is localised to fit particular historical, local and cultural contexts increasing its potential to be a tool for positive social change. It provides a conceptual, methodological and practical inquiry into rights-based approaches as a way of delivering development.</p>

scholarly journals Respecting and recognising Indigenous rights when challenged by commercial activities

2017 ◽  
Vol 10 (1) ◽  
pp. 1-17
Author(s):  
Valmaine Toki
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Extractive Industries ◽  
Reference Guide ◽  
Commercial Activities ◽  
Basic Rights ◽  
The United Nations ◽  
United Nations Declaration

The United Nations Declaration on the Rights of Indigenous Peoples was hailed as a triumph among Indigenous peoples, signalling a long-awaited recognition of their fundamental human rights. Despite this, many violations of these basic rights continue, particularly in relation to extractive industries and business activities. In response, a business reference guide seeks to inform industries of their responsibilities. This article examines the tenuous relationship between Indigenous rights, state responsibilities and business expectations.

scholarly journals The Cross-Fertilization of Human Rights Norms and Indigenous Peoples in Africa: From Endorois and Beyond

2014 ◽  
Vol 5 (4) ◽  
Author(s):  
Derek M K Inman
Keyword(s):  
Human Rights ◽  
International Law ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Collective Rights ◽  
Dynamic Relationship ◽  
African Context ◽  
Human Rights Norms ◽  
Cross Fertilization ◽  
Tremendous Impact

Beginning in the 20th century, international law expanded beyond law between nations to eventually embrace the concept of human rights. However, until recently, human rights efforts were focused mostly on individuals, their rights and the obligations of the state in question. Indigenous peoples, on the other hand, have always articulated their collective rights and, to their credit, achieved notable success. While there is no doubt that these achievements should be applauded, what is also of interest, and deserves further study, are the ways in which human rights jurisprudence concerning Indigenous peoples’ collective rights intermingle, cross-fertilize, and integrate. This dynamic relationship between the various sources of Indigenous rights law has had a tremendous impact locally, changing how states interact with the Indigenous peoples living within its borders. The first aim of this article will be to explore the above-mentioned topics in detail with a particular eye on the African human rights systems. Secondly, it will examine how they relate to the Endorois case that was recently decided by the African Commission on Human and Peoples’ Rights. I conclude with an investigation into what this could mean for Indigenous peoples’ rights in the African context.

scholarly journals Development of an UNDRIP Compliance Assessment Tool: How a Performance Framework Could Improve State Compliance

2020 ◽  
Vol 11 (2) ◽  
Author(s):  
Jackson A. Smith ◽  
Terry L. Mitchell
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Assessment Tool ◽  
Indigenous Rights ◽  
Compliance Assessment ◽  
Performance Framework ◽  
Novel Approach ◽  
State Compliance ◽  
United Nations Declaration ◽  
A Performance

Improving state compliance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) can be supported by monitoring and measurement. Current approaches to monitoring state compliance with the UNDRIP are qualitative and non-standardized, which limits comparability across time and across geopolitical lines. In this article, we introduce a novel approach to monitoring compliance with the UNDRIP and human rights more generally. This work highlights the potential advantages of using a performance improvement framework to clearly identify gaps in compliance, monitor state compliance with the Declaration over time, and effectively assess and compare state compliance. We describe the development of a standardized UNDRIP compliance assessment tool and report the process and findings of a pilot test of the tool. The pilot assessment utilized the UN Special Rapporteur on the Rights of Indigenous Peoples' (SRRIP; Anaya, 2014) findings on the situation of Indigenous Peoples in Canada in three thematic areas: (a) self-government and self-governance; (b) consultation and free, prior, and informed consent (FPIC); and (c) land and natural resources. While insufficient for a fulsome assessment of Canada’s compliance with the UNDRIP, we restricted ourselves to the report for two reasons: first, to test the applicability of the tool for quantifying qualitative data; and, second, to evaluate the degree to which the UN monitoring mechanism for Indigenous rights adheres to the Declaration’s Articles for monitoring and reporting. We discuss implications and opportunities for improving human rights monitoring and state implementation efforts.

scholarly journals Realizing Indigenous Rights in the Context of Extractive Imperialism:

2019 ◽  
Vol 12 (1) ◽  
pp. 46-59
Author(s):  
Terry Mitchell
Keyword(s):  
Sustainable Development ◽  
Human Rights ◽  
Latin America ◽  
Indigenous Peoples ◽  
Indigenous Rights ◽  
Legal Framework ◽  
Economic Disparities ◽  
Resource Governance ◽  
United Nations Declaration ◽  
Domestic Law

Canada’s reputation as a global champion of human rights has been tarnished by the revelation of the enduring colonial impact and social and economic disparities endured by Indigenous peoples within Canada. While Canada has a strong legal framework for Indigenous rights, its significant and enduring policy and implementation failures are increasingly recognised by both domestic and international bodies. This article addresses Canada’s shifting yet fledgling progress towards the harmonisation of Canadian domestic law and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. The pathway to reconciliation and sustainable development for Canada is discussed as rights-based resource governance in contrast to Canada’s current imposition of extractive imperialism in both Canada and Latin America.

scholarly journals Looking Forward Looking Back: Customary International Law, Human Rights and Indigenous Peoples

2020 ◽  
pp. 1-26
Author(s):  
Shea Esterling
Keyword(s):  
Human Rights ◽  
International Law ◽  
Indigenous Peoples ◽  
Legal Status ◽  
Indigenous Rights ◽  
Soft Law ◽  
Customary International Law ◽  
United Nations Declaration ◽  
Shed Light

Abstract Two of the most laudable achievements of human rights are the 1948 Universal Declaration of Human Rights (udhr) and the 2007 United Nations Declaration on the Rights of Indigenous Peoples (undrip). Aside from advancing human rights, both are examples of soft law. For the undrip, this soft law status has generated significant controversy which is evocative of the earlier debate surrounding the legal status of the udhr. Yet unexamined, this article analyses this contemporary controversy surrounding the undrip in light of the historical debate surrounding the legal status of the udhr. Fleshing out points of convergence and divergence, these debates unearth narratives which shed light on the claims and advocacy strategies of Indigenous Peoples and the role of customary international law within human rights. Ultimately, it reveals that these narratives do little to secure the enforcement of indigenous rights.

scholarly journals ‘Another Tool in the Kete’: Māori Engaging with the International Human Rights Framework

2021 ◽  
Author(s):  
◽  
Hannah Mackintosh
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Indigenous Peoples ◽  
Local Level ◽  
Indigenous Rights ◽  
Indigenous Communities ◽  
Development Project ◽  
Methodological Foundation ◽  
Rights Discourse ◽  
The Way

<p>In this study, I consider how the universal concept of human rights is being engaged with and interpreted by Māori communities in Aotearoa/New Zealand. The rights of indigenous peoples have recently been formally defined within United Nations forums and cemented in the United Nations Declaration on the Rights of Indigenous Peoples. This research argues that the indigenous rights movement indicates a shift in many of the debates that have dominated the global rights rhetoric to a more evolutionary concept of human rights. It suggests that engaging with these debates has the potential to open up new dialogue within the human rights discourse for alternative ways of considering human rights at the global level. This will impact the way that rights-based approaches to development are implemented, engaged with and utilised at the local level. However, currently little is known about the ways in which indigenous communities are using human rights at the local level. This work focuses on a successful rights-based community development programme as a case study. Through this exploration, I consider the levels of empowerment and the positive impacts that resulted from increased knowledge of human rights in the region. I further present some of the principles inherent in the successful application of a rights-based development project. From a methodological perspective, it provides an exploration into the way that research involving indigenous communities is conducted. As a Pākehā researcher working with Māori communities I had to take extra care to ensure that this research had an ethically sound methodological foundation. Taking a critical perspective, I consider some of the political and social implications of being a non-indigenous researcher working with indigenous communities. This work illustrates that highly ethical, critical methodological approaches are essential to any development work. Overall, the research proposes that Māori concepts of human rights are placed within a distinct cultural framework. Human rights are understood and given meaning through Kaupapa Māori, tikanga and whakapapa. They are also framed within the experiences of a colonial history. This research provides an example of how this universal framework is localised to fit particular historical, local and cultural contexts increasing its potential to be a tool for positive social change. It provides a conceptual, methodological and practical inquiry into rights-based approaches as a way of delivering development.</p>

scholarly journals Human Rights Discourse and Interculturality: Insights from the Margins

2018 ◽  
Vol 12 (20) ◽  
pp. 543
Author(s):  
Raimundo César Barreto Jr.
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
World Politics ◽  
Women's Movements ◽  
Political Rights ◽  
Common Currency ◽  
Degrading Treatment ◽  
Civil And Political Rights ◽  
Rights Discourse ◽  
Human Rights Discourse

Since the early 1970s, human rights discourse has swept across the globe, becoming common currency in world politics.  Approaching the end of the 20thcentury, not only was there a significant increase in the use of the term “human rights” in official documents but the number of countries ratifying important international treatises protecting human rights also proliferated. According to Emilie Hafner-Burton and James Ron, 150 countries have ratified the two principal human rights treatises, namely, the International Covenant on Civil and Political Rights (ICCPR) and the Covenant Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). On top of that, new global social movements employ the language of “rights” or “human rights” in their reasoning; such movements include women’s movements, green movements, and indigenous peoples’ movements. Despite the sweeping use of human rights language, important questions have been asked about its efficacy.Interrogando as reivindicações universalistas em articulações discursivas dos Direitos Humanos, este artigo promove a necessidade de tornar os direitos humanos mais significativos e eficazes para as vidas daqueles que são empobrecidos, oprimidos, excluídos ou discriminados em diferentes culturas e contextos. Levando em consideração o atual cenário marcado ambiguamente pela globalização e pela pluralidade, bem como a ascensão da África e da Ásia  pós-colonial , além do discursos decoloniais latino-americanos, o artigo sugere uma abordagem intercultural dos direitos humanos que considera mais plenamente  diferentes vozes, entendimentos e interpretações, bem como estruturas e relações de poder que desempenham um papel em eclipsar e obstruir a liberdade de discursos pós-coloniais. Em contraste com uma imposição de cima para baixo de um discurso abstrato de universalização dos direitos humanos, esse artigo propõe uma abordagem de baixo para cima dos direitos humanos que leva a sério a multiplicidade de tradições e culturas que informam as visões de mundo e a vida cotidiana das pessoas. 

scholarly journals Indigenous Peoples and the Jurisgenerative Moment in Human Rights

2017 ◽  
Author(s):  
Angela R. RIley ◽  
Kristen Carpenter
Keyword(s):  
Human Rights ◽  
Indigenous Peoples ◽  
Postcolonial Theory ◽  
Indigenous Rights ◽  
International Human Rights Law ◽  
Paradigm Shifts ◽  
International Human Rights ◽  
Human Rights Movement ◽  
International Human ◽  
United Nations Declaration

As indigenous peoples have become actively engaged in the human rights movement around the world, the sphere of international law, once deployed as a tool of imperial power and conquest, has begun to change shape. Increasingly, international human rights law serves as a basis for indigenous peoples’ claims against states and even influences indigenous groups’ internal processes of decolonization and revitalization. Empowered by a growing body of human rights instruments, some as embryonic as the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), indigenous peoples are embracing a global “human rights culture” to articulate rights ranging from individual freedom and equality to collective self-determination, property, and culture. Accordingly, this Essay identifies and provides an account of what we see as an unprecedented, but decidedly observable, phenomenon: the current state of indigenous peoples’ rights—manifesting in tribal, national, and international legal systems—reflects the convergence of a set of dynamic, mutually reinforcing conditions. The intersection of the rise of international human rights with paradigm shifts in postcolonial theory has, we argue, triggered a “jurisgenerative moment” in indigenous rights. Bringing indigenous norms and values to their advocacy, indigenous peoples have worked to assert their voices in, and indeed to influence, the human rights movement. Indigenous peoples are now using the laws and language of human rights, shaped by indigenous experiences, not only to engage states but also as a tool of internal reform in tribal governance. This is, in our view, a jurisgenerative moment in indigenous rights—a moment when both the concept and practice of human rights have the potential to become more capacious and reflect the ways that individuals and peoples around the globe live, and want to live, today.Published: Angela R. Riley and Kristen A. Carpenter, "Indigenous Peoples and the Jurisgenerative Moment in Human Rights," 102 California Law Review 173 (2014).

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