Africa has suffered incommensurately from natural and human disasters and has been riven by ethnic and tribal hatreds. The flowering of political life has been inhibited by authoritarian governments showing scant respect for human rights. Despite and because of the travails, a positive and distinctive African human rights ‘fingerprint’ or accent has emerged. This chapter considers the cadences of the African language of human rights mainly in relation to the African Charter on Human and Peoples' Rights. The Charter is a singular and complex amalgam of categories or generations of human rights, of ‘domains of discourse’, acclimatising basic principles to the African context. The Charter extends the reach of peoples' rights beyond the self-determination of the Covenants to issues highly pertinent to indigenous concerns, including environment and development.
The iron cage of sovereignty-based international law loosened its power significantly in the twentieth century. A range of entities—States, international organisations, peoples, individuals, transnational corporations, etc.—presently participate in international law, as do indigenous peoples and minority groups. This flexibility is reflected only to a limited extent in current articulations of sources of international law. The entities do not all participate in the same way: State rights are not the same as rights for individuals; rights and duties of organisations are linked to the specifics of their mandates; rights of peoples are not the same as rights of minorities. This chapter discusses the UN Charter, general aspects of self-determination, general aspects of human rights and international action in support of human rights.
Indigenous peoples and the development of international law
This chapter traces a series of discourses to which indigenous peoples were subjected, including the development of notions of trust or guardianship and it looks at the early work of the International Labour Organization. The conclusion reflects briefly on the beginnings of the engagement of indigenous groups with contemporary instruments and concepts, with their promise of renewal and empowerment.
The Covenant on Economic, Social, and Cultural Rights (ICESCR) does not contain a specific article on indigenous groups or on minorities. None the less, concern about the conditions of indigenous life has exercised the Committee on Economic, Social and Cultural Rights on many occasions and will doubtless continue to do so. The Covenant is structured as a programmatic or promotional human rights treaty. The basic obligation for the States' parties is set out in Article 2.1 whereby each party ‘undertakes to take steps...to the maximum of its available resources, with a view to achieving progressively the full realization of the rights’ recognised in the Covenant. The Covenant highlights the bleak truth about the existence of many indigenous groups under modern conditions: that the peoples live lives of poverty, deprived of subsistence, education, health, land and culture. At first sight, the focus of the Covenant appears highly ‘economistic’, focusing on the valued goods of contemporary life and measuring comparative deprivation. However, the emphasis on intangibles such as culture suggests that the Covenant is a more complex whole.
Emanating principally from the Council of Europe, key European instruments have considerable potential to advance human rights strategies of indigenous groups. The Council of Europe's statutory principles are pluralist democracy, respect for human rights and the rule of law. Two major texts are accounted for in this chapter: the European Convention on Human Rights 1950 and the Framework Convention for the Protection of National Minorities 1995. Other texts, including those emanating from the Organisation for Security and Cooperation in Europe are discussed in the overall narrative of the chapter. A characteristic of European human rights law is its preoccupation with minority rights as well as general human rights. The concern with minorities is historically embedded, even if the texts on minorities are recent products.
In the matter of general instruments on indigenous peoples, the International Labour Organization (ILO) was first in the field. ILO Conventions 107 and 169 are in force, although the former is now closed to ratification. Both employ, to differing extents, the language of collective rights—rudimentary in the first treaty, massively conditioning the second. They represent the bulk of contemporary hard law of international indigenous rights. They work within the context of the ILO, but interrelate with the general world of human rights. They offer adapted general rights as well as specific rights not found elsewhere in international treaty law. The ILO can claim much of the credit for bringing rights of indigenous peoples—as such, and not as derivatives of other rights or applications of them—into the forefront of contemporary discussion. The Organisation has been regularly concerned with the condition of indigenous peoples during the course of its existence.
The record of the International Labour Organization (ILO) in dealing with indigenous peoples is treated at many points in the present work. A notable feature is the intellectual journey travelled between ILO Convention 107 and Convention 169, from the despair at the end of history to a new affirmation of indigenous presence and continuity. Many indigenous groups are wary of Convention 169 and contemptuous of 107. Neither Convention has been widely ratified, but the influence of ILO standards in the general consciousness of indigenous rights cannot be overestimated. The underestimation of 169 in particular may be for the wrong reasons and damaging to indigenous interests. While groups may be disappointed by its failure to address self-determination through evasive wording, the text of the Convention is radical by the standards of the human rights canon. In particular, its commitment to collective rights is remarkable and thoroughgoing. The Convention is strong on land rights and resources, customary law, education and participation.
This book is a full-length study of the rights of indigenous peoples in international law, focusing in particular on instruments of human rights. The primary reference point is contemporary law, though the book also examines the history of indigenous peoples through the lens of historical legal discourses. The work critically assesses the politics of definition and analyses contested definitions and descriptions of indigenous groups. Most of the chapters are devoted to detailed examination of existing and emerging human rights texts at global and regional levels. Among the instruments considered in the book are the International Covenants on Human Rights, the UN Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, the African Charter on Human and People's Rights, and the ILO Conventions on Indigenous and Tribal Peoples.
The existing decentred normative structures of human rights allow for thought, calculation and action on what kind of society, what world we wish to inhabit and on what kind of people we are. Indigenous groups have vigorously utilised existing structures, while continuing to agitate for a more focused legal regime. The exposition of rights avenues in the previous chapters has sought to report on human rights in the context of international law, respecting the integrity of the various instruments examined and the domains of discourse they incorporate. The chapters have appraised the texts holistically, in line with the approaches of treaty bodies and other interpreters. This chapter addresses some generic issues raised in the work as a whole, in line with the ‘elementary questions’ raised at the outset.
Many of the world's indigenous peoples are found within the jurisdictions of the member States of the Organisation of American States (OAS). The OAS is the latest of a succession of American organisations, and was established at the Ninth International Conference of American States, held in Bogota in 1948. The OAS Charter makes limited but significant allusion to human rights, couched in strongly individualist terms. There is considerable emphasis throughout the Charter on the achievement of democracy, the elimination of extreme poverty, social justice and on economic development, regional integration and trade. Indigenous peoples are not specifically mentioned. For such peoples, disparate directions are signposted by the Charter. On the one hand, the cultural values of the American countries are to be cherished, and the member States ‘will consider themselves individually and jointly bound to preserve and enrich the cultural heritage of the American peoples’.