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III. INDIGENOUS PEOPLES' HUMAN RIGHTS IN AFRICA: THE PRAGMATIC REVOLUTION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS

  • Jérémie Gilbert (a1)
Extract

The definition and scope of indigenous peoples' human rights are usually contentious in the context of Africa.2 While in recent years indigenous peoples' human rights have expanded immensely internationally, in Africa indigenous peoples' rights are still perceived to be in their infancy.3 At the United Nations, the group of African States delayed the process that finally led to the adoption of the United Nations Declaration of the Rights of Indigenous Peoples in 2007 (UNDRIP).4 At a national level, most of the States in Africa are still reluctant to recognize the specific rights of indigenous peoples.5 Until recently, the African Commission on Human and Peoples' Rights (the Commission), the leading human rights institution for the continent,6 had kept a low profile on the issue and had ‘not always interpreted indigenous peoples’ rights favourably'.7 From this perspective Commission regarding the communication submitted by the indigenous Endorois community against Kenya casts new light on the rights of indigenous peoples in Africa.8 The decision, which has already been hailed as a ‘landmark,’9 touches on several crucial issues regarding the development of indigenous peoples' human rights in Africa. This groundbreaking decision did not materialize unexpectedly but is part of a wider evolution of the Commission regarding indigenous peoples' human rights in Africa. It echoes the work of the Commission's own Working Group of Experts on Indigenous Populations/Communities (Working Group) which was established in 2001 with the mandate to focus specifically on the promotion and protection of the rights of indigenous peoples in Africa.10 The mandate of the Working Group is to examine the concept of indigenous communities in Africa, as well as to analyse their rights under the African Charter on Human and Peoples' Rights (African Charter).11 In 2003 the Commission adopted the report of the Working Group which proposes several avenues for the recognition and promotion of indigenous rights in Africa.12 The adoption of an Advisory Opinion by the Commission to support the adoption of UNDRIP marked another step toward the affirmation of indigenous peoples' rights in Africa.13 The Advisory Opinion not only participated in unlocking the reluctance of the group of African States to adopt the UNDRIP, but also reflected developments taking place at the international level on the rights of indigenous peoples as well as their connection to the continent. Remarkably, in recent years, the Commission has started to refer to indigenous peoples' rights in its examination of States' periodic reports.14 All these factors and the recent decision of the Commission in the Endorois case indicate the emergence of a consistent jurisprudence on indigenous peoples' rights in Africa.

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1 As reported in A Kiprotich, ‘Endorois Finally Return to their Family Land’ The Standard (Nairobi, Kenya 21 March 2010).

2 See H Weber, J Dahl, F Wilson and E Wæhle (eds), Never drink from the same cup: Proceedings of the conference on Indigenous Peoples in Africa (IWGIA Document no. 74, Tune, Denmark 1993); A Barnard and J Kenrick (eds), Africa's Indigenous Peoples: Peoples: ‘first peoples’ or ‘marginalised minorities’? (University of Edinburgh African Studies, Edinburgh, 2001); Morel C, ‘Defending Human Rights in Africa: The Case for Minority and Indigenous Rights’ (2003) 1 Essex Human Rights Review 1, 54.

3 See J Anaya, Indigenous Peoples in International Law (2nd edn, OUP, Oxford, 2004); P Thornberry, Indigenous Peoples & Human Rights (Manchester University Press, Manchester, 2003); Ngugi J, ‘The Decolonisation-modernisation Interface and the Plight of Indigenous Peoples in Post-colonial Development Discourse in Africa’ (2002) 20 Wisconsin International Law Journal 289.

4 See AK Barume, ‘Responding to the Concerns of the African States’ in C Charters, and R Stavenhagen (eds.), Making The Declaration Work: The United Nations Declaration on The Rights Of Indigenous Peoples (IWGIA, 2009); Willem Genugten van, ‘Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems’ (2010) 104 AJIL 1, 29.

5 However legal mechanisms to protect indigenous rights are being adopted in Burundi, Congo Republic, South Africa and Ethiopia. For analysis and overview, see: F Thornberry and F Viljoen, Overview Report on the Constitutional and Legislative Protection of the Rights of Indigenous Peoples in 24 African Countries (International Labour Organization and African Commission on Human and Peoples' Rights, 2009).

6 Arguably the African Court on Human Rights would constitute another important institution but it is too early to predict how such recently established institution will contribute. Generally on the Commission, see: R Murray, The African Commission on Human and Peoples' Rights and International Law (Hart Publishing, Oxford, 2000); Odinkalu C Anselm and Christensen C, ‘The African Commission on Human and Peoples’ Rights: The Development of Its Non-State Communication Procedures' (1998) 20 Hum Rts Q 235; Viljoen F and Louw L, ‘State Compliance with the Recommendations of the African Commission on Human and Peoples’ Rights, 1994–2004' (2007) 101 AJIL 1.

7 Bojosi KN and Wachira G Mukundi, ‘Protecting Indigenous Peoples in Africa: An Analysis of the approach of the African Commission on Human and Peoples’ Rights' (2006) 6 Afr Hum Rts L J 382.

8 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Communication 276/2003 (hereinafter: Endorois Case). The decision was adopted by the African Commission in May 2009 and approved by the African Union at its January 2010 meeting.

9 Human Rights Watch, ‘Kenya: Landmark Ruling on Indigenous Land Rights’, 4 February 2010; Forest Peoples Programme, ‘Landmark decision rules Kenya's removal of indigenous people from ancestral land illegal’, 4 February 2010; Minority Rights Group International, ‘Landmark decision rules Kenya's removal of indigenous people from ancestral land illegal’, 4 February 2010; ‘African Union Landmark Ruling on Endorois: People First’, The African Executive (Editorial), 31 March 2010; Korir Sing'Oei Abraham, ‘From non-beneficiaries to active stakeholders: The Endorois’, Pambazuka News, Issue 477, 15 April 2010.

10 See Resolution on the Rights of Indigenous Populations/Communities in Africa, African Commission on Human and Peoples' Rights, 28th ordinary session (2000).

11 African Charter on Human and Peoples' Rights, OAU Doc. CAB/LEG/67/3 Rev 5 (adopted in 1981, entered into force 1986).

12 Resolution on the Adoption of the Report of the African Commission's Working Group on Indigenous Populations/Communities, ACHPR/Res 51 (XXVII), 34th Ordinary Session, November 2003.

13 African Commission on Human and Peoples' Rights, ‘Advisory Opinion on the UN Declaration on the Rights of Indigenous Peoples’, 41st Ordinary Session, Accra, Ghana, May 2007. Available at: http://www.achpr.org/english/Special%20Mechanisms/Indegenous/Advisory%20opinion_eng.pdf.

14 See notably report on Cameroon, Central African Republic, Libya, for references, see Bojosi and Mukundi Wachira (n 7).

15 See Bojosi and Mukundi Wachira (n 7).

16 African Group, ‘Aide-memoire of the African Group on the United Nations Declaration on the Rights of Indigenous Peoples’ November 2006.

17 Previously, the Commission has addressed indigenous peoples' human rights claims, but never by openly using the language of indigenous rights. See notably the Ogoni case, Social and Economic Rights Action Center and the Center for Economic, and Social Rights/Nigeria, Communication No. 155/96 (27 May 2002).

18 See D Chatty and M Colchester (eds), Conservation and Mobile Indigenous Peoples. Displacement, Forced Settlement and Sustainable Development (Berghan Books, New York, 2002); M Colchester, ‘Salvaging Nature: Indigenous Peoples and Protected Areas’ in KB Ghimire and M Pimbert (eds) Social Change and Conservation (Earthscan, London, 1997); R Butler and T Hinch (eds), Tourism and Indigenous Peoples: Issues and Implications (Butterworth-Heinemann, 2007).

19 At the national level, a previous decision from the High Court ruled that the Endorois had effectively lost any legal claim as a result of the designation of the land as a Game Reserve in 1973.

20 The case was submitted by the Centre for Minority Rights Development (CEMIRIDE) a Kenyan NGO and Minority Rights Group International (MRG) to the African Commission on behalf of Endorois Welfare Council.

21 See Ngugi, (n 3).

22 See Anaya J and Williams R, ‘The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources under the Inter-American Human Rights System' (2001) 14 Harv Hum Rts J 33.

23 Kingsbury B, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law' (2001–2002) 34 NYU J Int‘l L & Pol 189; Wiessner S, ‘The Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harv Hum Rts J 57; Gilbert J, ‘Historical Indigenous Peoples’ Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title' (2007) 56 ICLQ 583; BJ Richardson, S Imai and K McNeil (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart Publishing, Oxford, 2009).

24 See notably Eide and Daes, ‘Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples’, UN Doc E/CN.4/Sub.2/2000/10 2000; see also: B Kingsbury, “Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy' (1998) 92 AJIL 414.

25 See N Kipuri, ‘The UN Declaration on the Rights of Indigenous Peoples in the African Context’ in C Charters, and R Stavenhagen (eds), Making The Declaration Work: The United Nations Declaration on The Rights Of Indigenous Peoples (IWGIA, 2009).

26 Tennant C, ‘Indigenous Peoples, International Institutions, and the International Legal Literature from 1945–1993’, (February 1994) 16 Human Rights Quarterly 1, 157; T Makkonen, Identity, Difference and Otherness: The Concepts of ‘People’, ‘Indigenous People’ and ‘Minority’ in International Law (Erik Castrén Institute of International Law and Human Rights, Helsinki, 2000).

27 Cobo, ‘Study of the Problem of Discrimination Against Indigenous Populations’, UN Doc E/CN.4/Sub.2/1983/21/add.8 (1983).

28 For references, see A Bernard and J Kenrick (eds), Africa's Indigenous Peoples: Peoples: ‘first peoples’ or ‘marginalised minorities’? (University of Edinburgh African Studies, Edinburgh, 2001); Land Rights and the Forest Peoples of Africa: Historical, Legal and Anthropological Perspectives (Forest Peoples Programme, March 2009).

29 For references, see A Kuper, The Invention of Primitive Society: Transformations of an Illusion (Routledge, London, 1988); S Saugestad, ‘Contested images, ‘First peoples’ or ‘marginalized minorities’ in Africa?' in A Barnard and J Kenrick (eds), Africa's Indigenous Peoples: ‘First peoples’ or ‘Marginalized Minorities’? (University of Edinburgh Centre of African Studies, Edinburgh, 2001) 299–322.

30 See Waldron JIndigeneity? First Peoples and Last Occupancy’ (2003) 1 New Zealand Journal of Public International Law 56; Kenrick J and Lewis J, ‘Indigenous peoples’ rights and the politics of the term “indigenous”' (2004) 20 Anthropology Today 49.

31 Advisory Opinion (n 13) para 13.

32 ibid para 10.

33 Report of the African Commission's Working Group of Experts on Indigenous Populations/Communities submitted in accordance with ‘Resolution on the Rights of Indigenous Populations/Communities in Africa adopted by the African Commission on Human and Peoples’ Rights at its 28th ordinary session (Published by IWGIA, 2005), see Chapter 4 (hereinafter: 2005 Report).

34 ibid 14.

35 Report of the Working Group (n 33) ch 4 89.

36 This also includes hunter-gathers and pastoralist communities which have taken up small-scale agriculture and trading, see Report of the Working Group (n 33) 15–19.

37 ibid 92.

38 The Kalenjin ethnic group of Nilotic origin live in the Great Rift Valley in Western Kenya and eastern Uganda, for more details, see B Kipkorir, People of the Rift Valley (Evans Brother, Nairobi, 1985).

39 Endorois Case (n 8) para 161, during the oral hearings at the 40th Ordinary Session, the government stated that: (a) the Endorois do not deserve special treatment since they are no different from the other Tungen sub-group, and that (b) inclusion of some of the members of the Endorois in ‘modern society’ has affected their cultural distinctiveness, such that it would be difficult to define them as a distinct legal personality (c) representation of the Endorois by the Endorois Welfare Council is allegedly not legitimate.

40 Endorois Case (n 8) para 147.

41 ibid para 150, and see Report of the Working Group, (n 33).

42 ibid para 151.

43 ibid para 154.

44 ibid para 156.

45 ibid para 157.

46 Inter-American Court of Human Rights, Case of the Saramaka People v Suriname (Judgment of 28 November 2007); Moiwana Village v Suriname, Judgment of June 15, 2005, Inter-Am Ct HR, (Ser. C) No. 145 (2005).

47 The Maroons constitute a tribal community that settled in Suriname in the 17th and 18th century. See generally R Price, Maroon Societies: Rebel Slave Communities in the Americas (3rd edn, The Johns Hopkins University Press, Baltimore, 1996).

48 Endorois Case (n 8) para 162.

49 ibid para 198.

50 Endorois Case (n 8) para 162.

51 See A Xhantaki, Indigenous Peoples and United Nations Standards: Self-determination, Culture, Land (CUP, Cambridge, 2007).

52 See Anaya (n 3) 134–141; F MacKay, ‘Universal Rights or a Universe unto Itself—Indigenous Peoples’ Human Rights and the World Bank's Draft Operational Policy 4.10 on Indigenous Peoples' (2001–2002) 17 Am U Int‘l L Rev 527; Anaya J, ‘International Human Rights and Indigenous Peoples: The Move toward the Multicultural State’ (2004) 21 Ariz J Int‘l & Comp L 13.

53 J Gilbert, ‘Custodians of the land: Indigenous Peoples, Human Rights and Cultural Integrity’ in W Logan, M Nic Craith, M Langfield (eds), Cultural Diversity, Heritage and Human Rights Intersections in Theory and Practice (Routledge, 2009).

54 M Scheinin, ‘The Right to Enjoy a Distinct Culture: Indigenous and Competing Uses of Land’ in TS Orlin et al (eds), The Jurisprudence of Human Rights: A Comparative Interpretive Approach (Åbo Akademi University Institute for Human Rights, 2000) 159–222.

55 Human Rights Committee (1994), General Comment No. 23: The Rights of Minorities (art 27), UN Doc CCPR/C/21/Rev.1/Add.5.

56 For an overview of this jurisprudence, see Anaya, Williams (n 22).

57 Endorois Case (n 8) para 16, emphasis added.

58 ibid para 16.

59 ibid para 166.

60 Human Rights Committee, General Comment 22, art 18 (48th session, 1993), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\ GEN\1\ Rev.1 (1994).

61 See Free Legal Assistance Group v Zaire, African Commission on Human and Peoples Rights, Comm. No. 25/89, 47/90, 56/91, 100/93 (1995).

62 Endorois Case (n 8) para 172.

63 ibid para 173.

64 ibid.

65 For references, see J Briones, ‘We Want to Believe Too: The IRFA and Indigenous Peoples’ Right to Freedom of Religion'; (2002) 8 UC Davis J Int‘l L & Pol‘y; NI Goduka and JE Kunnie (eds), Indigenous Peoples’ Wisom and Power: Affirming Our Knowledge Through Narratives (Ashgate, Kent, 2006); JL Cox, From Primitive to Indigenous: The Academic Study of Indigenous Religions (Ashgate, Kent, 2007); PP Arnold and A Grodzins Gold (eds), Sacred Landscapes and Cultural Politics: Planting a Tree (Ashgate, Kent, 2001).

66 Endorois Case (n 8) para 115.

67 See R Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ in A Eide, C Krause and A Rosas (eds), Economic, Social and Cultural Rights—A Textbook (2nd edn, 2005) 85–109.

68 See: Ivan Kitok v Sweden, Communication No 197/1985, CCPR/C/33/D/197/1985 (1988); Lubicon Lake Band v Canada, Communication No 167/1984 (26 March 1990), UN Doc Supp. No. 40 (A/45/40); Länsman et al v Finland, Communication No. 511/1992, UN Doc CCPR/C/52/D/511/1992; General Comment No. 23: The Rights of Minorities (Art 27), UN Doc CCPR/C/21/Rev.1/Add.5.

69 Endorois Case (n 8) para 250.

70 ibid para 251.

71 On the correlation between cultural rights and access to natural resources, see also: Social and Economic Rights Action Center and the Center for Economic, and Social Rights/Nigeria, Communication No. 155/96.

72 Endorois Case (n 8) para 212, quoted from: E-I Daes ‘Indigenous Peoples’ Right to Land and Natural Resources' in N Ghanea and A Xanthaki (eds), Minorities, Peoples and Self-Determination (Martinus Nijhoff Publishers, Leiden, 2005).

73 J Gilbert, Indigenous Peoples' Land Rights under International Law: From Victims to Actors (Transnational Publishers-Martinus Nijhoff, 2007).

74 Report of the Working Group (n 33) 21.

75 See Gilbert J, ‘Nomadic Territories: A Human Rights Approach to Nomadic Peoples’ Land Rights' (2007) 7 Human Rights Law Review 4, 681.

76 See Land Rights and the Forest Peoples of Africa (n 28).

77 Report of the Working Group (n 33) 108.

78 Art 14 states: ‘The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.’

79 See O Lumumba, Who owns this land? A guide to understanding the law of trust lands in Kenya (Kenya Human Rights Commission, 1997); see also C Juma and JB Ojwang (eds), In land we trust: Environment, private property and constitutional changes (Initiatives Publishers, Nairobi, 1996); JW Herbeson, Nation building in Kenya: The Role of Land Reform (Northwestern University Press, Evanston, 1973).

80 Constitution of Kenya: art 115 (2) states: ‘Each County Council shall hold the Trust Land vested in it for the benefit of the persons ordinarily resident on that land and shall give effect to such rights, interests or other benefits in respect of the land as may, under the African customary law for the time being in force and applicable thereto, be vested in any tribe, group, family or individual.’ See: Report of the commission of inquiry into the land law system of Kenya (Government of Kenya, 2002).

81 See Amodu Tijani v Southern Nigeria, United Kingdom Privy Council, (1921); 2 AC 399, Alexkor Ltd v Richtersveld Community, Constitutional Court of South Africa, CCT 19/03, (2003); Mabo v Queensland, High Court of Australia, (1992); 107 A.L.R. 1, Calder et al v Attorney-General of British Columbia, Supreme Court of Canada, (1973) 34 DLR (3d) 145.

82 Endorois Case (n 8) para 199 (emphasis omitted).

83 Bennett TW and Powell CH, ‘The State as Trustee of Land’ (2000) 16 S Afr J on Hum Rts 601; Elliott DW, ‘Aboriginal Peoples in Canada and the United States and the Scope of the Special Fiduciary Relationship’ (1996–1997) 24 Man LJ 137; G Nettheim, D Craig, and GD Meyers (eds), Indigenous Peoples and Governance Structures: a Comparative Analysis of Land and Resource Management Rights (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2002).

84 Kenya has since then discarded the system of Trust Land by adopting a New Land Policy in 2009.

85 Endorois Case (n 8) para 204.

86 For a discussion on this point, see Gilbert (n 73) ch 3.

87 ibid para 12.

88 See Constitution of Kenya, Chapter V, Protection of Fundamental Rights and Freedoms of the Individual; for analysis, see Y Ghai, ‘The Kenyan Bill of Rights’ in P Alston (ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (OUP, Oxford, 2000) 187–239.

89 See F Ndahinda Mukwiza, ‘Victimization of African Indigenous Peoples: Appraisal of Violations of Collective Rights under Victimological and International Law Lenses’ (2007) 14 International Journal on Minority and Group Group Rights 1.

90 For an in depth analysis on this point, see Gilbert, (n 73) ch 3.

91 Universal Declaration of Human Rights, (1948), GA Res. 217A (III), UN Doc. A/810, at 71 (1948), art 17.

92 Ogoni Case (n 17).

93 Inter-American Court of Human Rights, The Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment of August 31, 2001, Inter-Am Ct HR, (Ser C) No 79 (2001).

94 Endorois Case (n 8) para 209.

95 ibid para 187.

96 ibid para 214.

97 ibid para 235.

98 ibid para 101.

99 ibid para 235.

100 ibid; see discussion on this point, para 196.

101 ibid para 197, citing: Indigenous Community Yakye Axa v Paraguay 17 June 2005, Inter American Court of Human Rights; Case of the Sawhoyamaxa Indigenous Community v Paraguay, Judgment of 29 March 2006 Inter-American Court of Human Rights; The Mayagna Awas Tingni v Nicaragua, Inter-American Court of Human Rights, (2001).

102 ibid para 209.

103 ibid.

104 See ‘Indigenous peoples: development with culture and identity: arts 3 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples, Report of the international expert group meeting’, UN Doc E/C.19/2010/14; ‘Peoples’ Self-determined Development or Development with Culture and Identity', UN Doc E/C.19/2010/CRP.4.

105 J Mander and V Tauli-Corpuz (eds), Paradigm Wars: Indigenous Peoples' Resistance to Globalization (Sierra Club Books, 2006).

106 C Doyle and J Gilbert, ‘Indigenous Peoples and Globalisation: From Development Aggression to Self-determined Development’ (2010) European Yearbook on Minority Issues.

107 Report of the Working Group (n 33) 22–34.

108 See: M Blaser, HA Feit, and G McRae (eds), In the Way of Development: Indigenous Peoples, Life Projects and Globalization (Zed/IDRC 2004).

109 Endorois Case (n 8) para 178.

110 ibid para 270.

111 Endorois Case (n 8) para 135.

112 ibid para 129.

113 ibid.

114 See M Salomon and A Sengupta, The right to development: obligations of states and the rights of minorities and indigenous peoples (Minority Rights Group International, 2003).

115 For a review and references, see Alston P, ‘Making Space for New Human Rights: The Case of the Right to Development’ (1988) 1 Harvard Human Rights Yearbook, 3; D Aguirre, The Human Right to Development in a Globalized World (Ashgate, Kent, 2008); and K de Feyter, World Development Law (Intersentia, 2001); M Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law (OUP, Oxford, 2007).

116 Endorois Case (n 8) para 277.

117 ibid para 20.

118 See M Colchester and F MacKay, In search of Middle Ground: Indigenous Peoples, Collective Representation and the Right to Free, Prior and Informed Consent (Forest Peoples Programme, 2004).

119 Inter-American Court of Human Rights, Case of the Saramaka People v Suriname Inter-Am Ct HR, (Ser. C) No. 172 (2007).

120 Endorois Case (n 8) para 227.

121 ibid para 290.

122 See Carino J, ‘Indigenous Peoples’ Right to Free, Prior, Informed Consent: Reflections on Concepts and Practice' (2005) 22 Ariz J Int‘l & Comp L 19; MacKay F, ‘Indigenous Peoples’ Right to Free, Prior and Informed Consent and the World Bank's Extractive Industries Review' (2004) 4 Sustainable Development Law & Policy 2; McGee B, ‘The Community Referendum: Participatory Democracy and the Right to Free, Prior and Informed Consent to Development’, (2009) 27 Berkeley J Int‘l Law 570.

123 UN Declaration, art 32.2 states: ‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.’

124 M Colchester and M Farhan Ferrari, Making Free, Prior and Informed Consent Work: Challenges and Prospects for Indigenous Peoples (Forest Peoples Programme, Moreton-in-Marsh, 2007).

125 Endorois Case (n 8) para 291.

126 ibid para 290.

127 ibid para 294.

128 ibid para 228.

129 ibid para 289.

130 ibid para 296.

131 See International Workshop on the Natural Resource Companies, Indigenous Peoples and Human Rights: Setting a Framework for Consultation, Benefit-sharing and Dispute Resolution, UN Doc A/HRC/EMRIP/2009/5; Rachel Wynberg, Doris Schroeder, and Roger Chennells, Indigenous Peoples, Consent and Benefit Sharing: Lessons from the San-Hoodia (Springer, 2009); Craig D and Davis M, ‘Ethical Relationships for Biodiversity Research and Benefit-Sharing with Indigenous Peoples’ (2005) 2 Macquarie J Int‘l & Comp Envtl L 31.

132 Endorois case (n 8) para 238.

133 ibid para 298.

134 ibid para 294.

135 ibid para 296.

136 ibid para 228.

137 For an illustration of such debate, see Kuper A, ‘The Return of the Native’ (2003) 44 Current Anthropology 3, 389.

138 Advisory Opinion (n 13) para 19.

139 Endorois Case (n 8) para 149.

140 See Barelli M, ‘The Interplay between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime’ (2010) 32 Human Rights Quarterly 4, 951.

141 L Alden Wily, Whose Land Is It? Commons and Conflict States, Why the Ownership of the Commons Matters in Making and Keeping Peace (Rights & Resources, 2008); L Wily Alden, ‘Custom and commonage in Africa rethinking the orthodoxies’ (2008) 25 Land Use Policy 1, 4352.

142 See Report of the Special Rapporteur on the Right to Food, Olivier de Schutter, ‘Large-scale Land Acquisitions and Leases: A Set of Minimum Principles and Measures to Address the Human Rights Challenge’, UN Doc A/HRC/33/13/Add.2; and also J Gilbert and D Keane, ‘The New Scramble for Africa: Towards a Human Rights-based Approach to Large-scale Land Acquisitions in the SADC Region’ in B Chigara (ed), SADC Land Issues: A New, Sustainable Land Relations Policy (Routledge, forthcoming 2011).

143 For references on the right to self-determined development, see: C Doyle and J Gilbert, ‘Indigenous Peoples and Globalisation: From Development Aggression to Self-determined Development’ European Yearbook on Minority Issues (forthcoming, 2011).

144 Pasqualucci JM, ‘The Evolution of International Indigenous Rights in the Inter-American Human Rights System’ (2006) 6 Human Rights Law Review 2, 281322.

145 For references on such evolution, see F MacKay, A Guide to Indigenous Peoples' Rights in the Inter-American Human Rights System (IWGIA, Copenhagen, 2002); Farer T, ‘The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox’ (1997) 19 Hum Rts Q 510.

The author wishes to thank Cynthia Morel, David Keane and Joshua Castellino for comments on an earlier draft of this article.

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