International Law and Indigenous Peoples: Historical stands and. contemporary developments
Half a millennium ago the peoples indigenous to the continents now called North and South America began to experience change, a kind of change they had not experienced before. Europeans arrived and began to lay claim to their lands, frequently slaughtering the Native children, women, and men who stood in the way. For many of those who survived, the Europeans brought disease and slavery.
Not long after the genocidal patterns began, concerned European theologians and jurists questioned the legality and morality of the onslaught. What emerged from their lectures and writings were prescriptions designed to shape encounters with the peoples of the "New World." The dominant sixteenth century juridical view was expressed by the Spanish Dominican cleric Francisco de Vitoria who, applying natural law precepts, challenged the Spanish claims to Native lands. Vitoria argued that the Indians of the Americas were the true owners of their lands, with "dominion in both public and private matters," and upon this premise he set forth the rules by which the Europeans could validly acquire Indian lands or assert authority over them. Vitoria's work, grounded in the European theocratic world view of the sixteenth century, was filled with cultural biases, and he provided conceptual support for colonial patterns by his theory of just war. Nonetheless, within the limitations of that world view, Vitoria essentially treated the Indians as having the same rights and duties as all of humanity. Like all others, Indians could have war waged against them for "just" cause; but unless conquest followed a just war, Indians could not unilaterally be dispossessed of their lands or their autonomous existence.
Vitoria's lectures on the Indians established him among the oft-cited founders of modern international law. His prescriptions for the European encounters with the aboriginal peoples of the Western Hemisphere were building blocks for a system of principles and rules governing encounters among all peoples of the world. Subsequent theorists continued through the nineteenth century to include non-European aboriginal peoples as among the subjects of what came to be known as the "law of nations," and later, "international law." Accordingly, the law of nations was the grounding for the first pronouncements of the United States Supreme Court on the status and rights of Native Americans. In Johnson v. M'lntosh (1823), Cherokee Nation v. Georgia (1831), and Worcestar v. Georgia (1832), cases authored by Chief Justice John Marshall, the Supreme Court invoked international law to uphold the "original rights" of Native peoples as well as to signal the means by which those rights could be limited or abrogated.
Whatever protection the early law of nations afforded the non-European aboriginal peoples, it was not enough to stop the forces of colonization and empire as they extended throughout the globe. Theorists eventually modified the law of nations to reflect, and hence legitimize, a state of affairs that subjugated indigenous peoples. Forgetting the origins of the discipline, theorists described the law of nations, or international law, as concerning itself only with the rights and duties of European and similarly "civilized" states, and as having its source entirely in the positive, consensual acts of those states. Vitoria's admonishments concerning the rights of American Indians were recast as statements of morality as opposed to law; international law moved to embrace what the "civilized" states had done, regardless of justification, and what they had done was to invade foreign lands and peoples and assert sovereignty over them.
Since the human suffering of World Wars I and II, international law has reacquired its fundamental concern for the welfare of human beings, but this time in retreat from the orientation in which theorists divorced law from morality and denied international rights to all but states. International law now contains among its constitutional elements precepts based on visions of a peaceful world order and the concept of human rights. The United Nations, other modern international organizations, and enhanced communications media provide institutional support for the promotion of peace and human rights. The modern human rights program focuses directly on the welfare of individuals and, increasingly, of groups, and hence extends the competency of international law beyond concern for relations among states only.
Within the last several years, concern for groups identified as indigenous has assumed a prominent place on the international human rights agenda. The category of indigenous peoples is generally understood to include not only the Native tribes of the American continents, but also other culturally distinctive non-state groupings, such as the Australian aboriginal communities and tribal peoples of southern Asia, that are similarly threatened by the legacies of colonialism.
Indigenous peoples are themselves largely responsible for the mobilization of the international human rights program in their favor. During the 1970s, indigenous groups organized and extended their efforts internationally to secure legal protection for their continued survival as distinct communities with historically based cultures, political institutions, and entitlements to land. In appeals to the international community, indigenous groups and supportive international non-governmental organizations (NGOs) linked their concerns with general human rights principles such as self-determination and nondiscrimination. Among the major developments were several international conferences attended by indigenous peoples' representatives, including the 1977 International Non-Governmental Organizations Conference on Indigenous Populations in the Americas, held in Geneva, Switzerland. Indigenous peoples' efforts coalesced into a veritable international campaign, aided by an increase of supportive scholarly writings from moral and sociological, as well as juridical, perspectives.
A series of processes promoted through international organizations have translated indigenous peoples' demands into a new and still developing body of international human rights law. A watershed in United Nations (UN) activity concerning indigenous peoples was the 1971 resolution by the UN Economic and Social Council authorizing a study on the conditions of indigenous populations. The study was entrusted to Ambassador Martinez Cobo, and was prepared largely by the UN Center for Human Rights. The fifth and final volume of the study was completed in 1983. One of the most comprehensive surveys of the status of indigenous communities worldwide at the time of its writing, the study includes extensive recommendations and conclusions generally supportive of indigenous peoples' demands. The study, which makes a strong case for special protections to safeguard indigenous cultures, has become a standard reference for normative deliberations concerning indigenous peoples within the UN system.
The case for the protection of indigenous rights and the conceptualization of those rights was further advanced by the 1981 Conference of Specialists on Ethnocide and Ethnodevelopment in Latin America, sponsored by the UN Educational, Scientific, and Cultural Organization. The Conference, held in San Jose, Costa Rica, adopted a declaration affirming the "inalienable right of Indian groups" to consolidate their cultural identity and to "exercise...self determination."
Shortly after the 1981 Conference, and upon the recommendation of the Martinez Cobo study, the UN Human Rights Commission and the Economic and Social Council approved the establishment of the UN Working Group on Indigenous Populations. An organ of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, the Working Group has met annually since 1982 in one - or two-week sessions. The original mandate of the Working Group was to review developments concerning indigenous peoples' rights and to work toward the evolution of corresponding international standards. The Working Group's standard-setting mandate was refined in 1985, when the Sub-Commission approved its decision to draft a declaration on the rights of indigenous peoples for consideration by the UN General Assembly. In 1988 the Working Group chair produced a draft of the declaration and, after comments by government and indigenous peoples' representatives, revised the draft in 1989. Discussion on the revised draft has continued throughout the Working Group's subsequent sessions.
The Working Group itself is composed of five rotating members of the Sub-Commission, who act in the capacity of experts rather than government representatives. Yet, through its activities, the Working Group has engaged states, indigenous peoples, and others in an extended multilateral dialogue on the conditions of indigenous peoples around the world, and on the standards that should govern behavior towards them. The Working Group has provided a forum for indigenous representatives to articulate concerns and assert rights, which they have done in part by promoting their own written declarations of rights, and government representatives have joined in the discussion. Virtually every state of the American continents has participated in the Working Group's activity. Canada, with its large indigenous population, has taken a leading role. States of other regions with significant indigenous population also have been active, especially Australia and New Zealand. The Philippines, Banglades, and India are just a few of other numerous states that have made regular oral or written submissions to the Working Group.
Although the Working Group's activity has yet to result in a declaration of rights approved by the UN General Assembly, these years of work have vastly contributed to the articulation and affirmation of indigenous rights precepts. A broad consensus of opinion about a certain minimum set of standards favorable to indigenous peoples' demands is now evident in the multitude of government and other authoritative statements to the Working Group.
Following the lead of the UN Working Group, the International Labor Organization (ILO), a specialized agency within the UN system, set about in the middle 1980s to revise its convention on indigenous peoples. The original 1957 ILO Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (No. 107) had been widely criticized for being out of step with current thinking on indigenous peoples. Adopted during a period in history when the dominant political elements in domestic and international circles placed little or no value on indigenous cultures, the 1957 Convention, as its little suggests, presumed a norm of assimilation.
In 1986, the ILO convened a "Meeting of Experts," which recommended that the Convention be revised. The meeting unanimously concluded that the "integrationist language" of Convention No. 107 is "outdated" and "destructive in the modern world." Discussion on the revision proceeded at the 1988 and 1989 sessions of the International Labor Conference, the highest decision-making body of the ILO. Thirty-nine government representatives participated in the conference committee for the revision, in addition to the worker and employee delegates that are part of the "tripartite" system of governance in the ILO. All of the states that have been active in the UN Working Group meetings took on highly visible roles in the Conference Committee. The United States, which thus far has participated minimally in the Working Group's activity, played a major part in the ILO process.
The Conference Committee approved a new text by consensus, and at the close of the 1989 session, the full Labor Conference adopted the new Convention on Indigenous and Tribal Peoples (No. 169) by an overwhelming majority of the voting delegates. The new Convention No. 169 carries the basic theme of the right of indigenous peoples to live and develop by their own designs as distinct communities. The Convention has extensive provisions advancing indigenous cultural integrity, land and resource rights, and non-discrimination in social welfare spheres; and it generally enjoins states to respect indigenous peoples' aspirations in all decisions affecting them. Some indigenous rights advocates have expressed dissatisfaction with language in Convention No. 169, viewing it as not sufficiently constraining government conduct in relation to indigenous peoples' concerns. But whatever its shortcomings, the Convention succeeds in affirming the value of indigenous communities and cultures, and in setting forth a series of basic standards in that regard. As of February 1992 four states had already ratified the Convention (Bolivia, Colombia, Mexico, and Norway), and ILO officials reported that several other ratifications were expected in the immediate future.
The Organization of American States (OAS) is another international venue that has promoted international norms concerning indigenous peoples. In 1973 the OAS Inter-American Commission on Human Rights adopted a set of policy guidelines which affirm respect for the integrity and well-being of indigenous communities. Outside the Commission, the OAS maintains a permanent interest in indigenous peoples through its Inter-American Indian Institute, which provides advisory services and convenes periodic conferences.
In November 1989, the OAS General Assembly resolved to "request the Inter-American Commission on Human Rights to prepare a judicial instrument relative to the rights of indigenous peoples." To that end, the Commission convened a meeting of indigenous peoples' representatives in Mexico City in January of 1991 to discuss the project. It appears that the first OAS instrument on indigenous rights will take the form of a resolution, which would lay the groundwork for a subsequent OAS-sponsored convention.
Through these multiple international processes, indigenous peoples and their supporters have been successful in moving the international community to an ever greater accommodation of their demands. While the movement can be expected to continue as indigenous peoples continue to press their cause, a new body of international law specifically concerned with indigenous peoples has emerged already. The recently adopted ILO Convention No. 169 on Indigenous and Tribal Peoples stands as an express affirmation of the burgeoning commitment by the world community to secure a future in which indigenous communities may retain their unique characteristics and develop freely in co-existence with all of humankind.
In addition to creating treaty obligations among ratifying countries, Convention No. 169 reflects emergent customary international law. It is evident that states, international organizations and other actors influential internationally have reached a certain common ground about minimum standards that should generally govern behavior toward indigenous peoples, and it is further evident that the standards are in fact already guiding behavior. Under modern conceptions of international law, such a controlling consensus which follows from widely shared values of human dignity is constitutive of customary law. The existence of customary law concerning indigenous peoples is significant; states generally are bound to follow customary international law whether or not they have taken some formal action assenting to it.
The new international norms are grounds upon which indigenous peoples may appeal to decision makers in international forums, although international procedures for the enforcement of human rights law are limited. Relevant procedures within the UN, the OAS, and specialized international agencies (such as the ILO) rest mostly on the threat of placing a human rights violator in a shameful light in the eyes of world public opinion, rather than on formal sanctioning mechanisms. Nonetheless, the mobilization of shame can wield significant influence.
Contemporary international indigenous rights norms may also be invoked in purely domestic settings. The norms are appropriately invoked in direct appeals to the political branches of government. Additionally, in the United States, as in many countries, domestic tribunals may consider international treaty and customary norms as rules of decision; or international norms may be used to guide judicial interpretation of domestic rules. Indeed, the genesis of United States legal doctrine concerning Native peoples is in the international law of the colonial is in the international law of the colonial period. The United States doctrine is likely again to cross paths with the relevant international law.
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