Indigenous Peoples

by

Jérémie Gilbert

• LAST REVIEWED: 26 June 2019
• LAST MODIFIED: 26 June 2019
• DOI: 10.1093/obo/9780199796953-0110

Introduction

The rights of indigenous peoples under international law have evolved greatly since the late 1980s. Efforts by indigenous peoples to get their rights recognized under international law started during the League of Nations in the early 1920s, but it was only in 2007 that the General Assembly of the United Nations (UN) adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The adoption of the declaration not only marks an important moment in terms of lawmaking; it also represents the achievement of long decades of lobbying and advocacy from indigenous peoples’ representatives. The UN declared the decade 1994–2004 as the First International Decade of the World’s Indigenous Peoples, and later 2005–2015 was declared the second such decade. The main objective was the strengthening of international cooperation for the solution of problems faced by indigenous people in such areas as human rights, the environment, education, and health. As a result, in 2002, the Permanent Forum on Indigenous Issues was established as an advisory body to the UN Economic and Social Council. But it was only in 2007 that the UN General Assembly adopted the UNDRIP, which universally proclaims and consolidates a specific international legal corpus of rights for indigenous peoples. The adoption of the declaration is representative of the significant legal developments of the rights of indigenous peoples under international law. The international legal framework concerns general human rights such as nondiscrimination and equality, as well as very specific collective rights such as self-determination, cultural rights, land rights, and control over natural resources. The establishment of a specific corpus of law dedicated to the rights of indigenous peoples, or sui generis rights, has also meant a proliferation of scholarly literature on the topic. This article does not propose to be exhaustive or comprehensive, but rather to offer a review of some of the texts that can guide the researcher or the reader through the vast and extensive existing literature. First, it focuses on some of the leading sources that provide a general overview on the rights of indigenous peoples. It then examines the institutional and regional approaches. And finally, it focuses on specific issues affecting indigenous peoples, namely historical claims, self-determination, land rights, natural resources, and development.

General Overviews and Reference Works

The literature regarding the rights of indigenous peoples is often very specialized either in terms of its focus on specific rights (Venne 1998, Alfredsson and Stravropoulou 2002), or in terms of its geographical scope (Richardson, et al. 2009). There are, however, a few texts that should be seen as essential general references, namely Anaya 2004, Thornberry 2002, and Kingsbury 2001.

• Alfredsson, Gudmundur, and Maria Stravropoulou, eds. Justice Pending: Indigenous People and Other Good Causes—Essays in Honour of Erica-Irene A.Daes. Raoul Wallenberg Institute Human Rights Library. The Hague and New York: Martinus Nijhoff, 2002.

  This Festschrift, honoring the work of Erica Daes, provides a relevant source on indigenous rights at the international legal level. The range of topics covered is extremely wide and provides a great source of primary materials. The annex contains several of the key UN documents developed by Daes over the years, including her key studies on land rights.

• Åhrén, Mattias. Indigenous Peoples’ Status in the International Legal System. Oxford: Oxford University Press, 2016.

  DOI: 10.1093/acprof:oso/9780198778196.001.0001

  This book offers an excellent analysis on the interaction between indigenous peoples and international law by focusing on the issue “peoplehood” and “equality.” In adopting such relevant approaches, the book manages to offer an in-depth and rich critical analysis of the main rights and institutional frameworks relevant to indigenous peoples under international law.

• Anaya, James. Indigenous Peoples under International Law. 2d ed. Oxford: Oxford University Press, 2004.

  This book is probably one of the most influential monographs on the issue. The author examines the history of international law regarding indigenous peoples to explain the contemporary legal system and its impact on indigenous peoples. The book is full of essential references, and it should be seen as an essential read.

• Kingsbury, Benedict. “Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law.” New York University Journal of International Law and Politics (2001).

  This article represents an extremely enlightening review on the rights of indigenous peoples and their place within the overall international human rights system. The aim of the article is to review the conceptual foundations on which indigenous peoples’ legal claim can rest. While written before the adoption of the UNDRIP, this article remains extremely relevant in its analysis of the different legal frameworks available to indigenous peoples’ claims.

• Richardson, Benjamin J., Shin Imai, and Kent McNeil, eds. Indigenous Peoples and the Law: Comparative and Critical Perspectives. Oxford: Hart, 2009.

  This is a collective book published in 2009 with the aim of “taking stock” of the place of indigenous peoples’ rights within the national sphere, and it also provides some comparative analysis. Although it focuses mainly on the situation of indigenous communities in the Commonwealth, and predominately Australia, New Zealand, and Canada, it offers some relevant analysis on international legal issues.

• Thornberry, Patrick. Indigenous Peoples and Human Rights. Melland Schill Studies in International Law. Manchester, UK: Manchester University Press, 2002.

  DOI: 10.7228/manchester/9780719037931.001.0001

  This book presents a very comprehensive analysis on the rights of indigenous peoples under human rights law. It focuses on the evolution, the content, and the place of the rights of indigenous peoples within the human rights framework. The book is extremely rich in references and analysis, and it should be seen as an essential reference on the issue.

• Venne, Sharon Helen. Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Peoples. Penticton, BC: Theytus, 1998.

  This book offers a compelling analysis on the evolution of international law. It includes a thorough review of the “doctrine of discovery” and its impact on indigenous peoples’ rights. It provides some relevant analysis on the evolution of international law, notably by taking a critical view of the place of indigenous peoples within the international legal architecture.