Volume 15, Issue 1 (Spring 2010)

In January of 2010, scholars and practitioners from around the world traveled to UCLA for our symposium, “Indigenous Peoples’ Rights in the International Human Rights Framework: A Comfortable Fit?”. From that successful meeting emerged this issue. Available online at HeinOnline.

The Law of Self-Determination and The United Nations Declaration on the Rights of Indigenous Peoples by Robert T. Coulter. 15 UCLA J. Int’l L. Foreign Aff. 1 (2010).

The recognition of the right of self-determination in the Declaration on the Rights of Indigenous Peoples, adopted by the UN in 2007, is probably the most important development in the law of self-determination since the era of decolonization. The right of self-determination in the Declaration is the crystallization of a new right for indigenous peoples as distinct peoples within states, not merely the right to participate in the political life of the country as part of the whole people of the state. The Declaration also reaffirms for indigenous peoples the right of self-determination contained in common Article 1 of the Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights. This article summarizes the international law concerning the right of self-determination at the time the Declaration was adopted and discusses the development and content of that right in the Declaration. This article is based on the author’s personal observations and notes of the debates over the course of thirty years as well as the written records of the drafting and debate of the Declaration.

When Afro-Descendents Became “Tribal Peoples”: The Inter-American Human Rights System and Rural Black Communities by Ariel E. Dulitzky. 15 UCLA J. Int’l L. Foreign Aff. 29 (2010).

The inter-American human rights system has established itself as a permanent and prominent actor in the discussion on the protection of indigenous and Afro-descendant collective territorial rights. It has done so by demonstrating receptivity to the territorial demands of indigenous and Afro-descendant peoples. The inter-American jurisprudence, in order to recognize collective rights to property, assumes and requires that indigenous and certain Afro-descendant peoples have a unique cultural relationship with their lands and qualify as “tribal peoples.” While there are benefits and opportunities from the use of an international judicial mechanism to protect these collective rights, there are also limits to employing a litigation strategy based on the cultural approach to territory. In examining these problems and limitations, this article focuses on one particular type of claim that indigenous and Afro-descendant peoples have been bringing before the inter-American human rights system in the last few decades: claims for the protection of lands and territories they have traditionally owned and the natural resources within them. The article attempts to respond to the following questions: What groups remain excluded from making similar claims? Does the inter-American system sufficiently protect the natural resources found within traditional territories? Does this cultural approach confront the structural discrimination faced by Afro-descendants in Latin America?

Reconciling Collective and Individual Rights: Indigenous Education and International Human Rights Law by Lorie M. Graham. 15 UCLA J. Int’l L. Foreign Aff. 83 (2010).

This paper was written for the UCLA Journal of International Law and Foreign Affairs, which sponsored a symposium titled “Indigenous Peoples’ Rights in the International Human Rights Framework: A Comfortable Fit?”. This question of a “comfortable fit” is one that has informed my work as a member of the ILA Committee on the Rights of Indigenous Peoples, which has been charged with the task of formulating a commentary on the newly adopted United Nations Declaration on the Rights of Indigenous Peoples (“Declaration”). My research on the Declaration has focused on two primary areas of law: education and media. Elsewhere, I have argued that these two rights are essential to Indigenous Peoples’ struggles to strengthen and maintain their societies and cultures. This paper focuses primarily on the right to education under Article 14 of the Declaration, which is an area of international law that lends itself well to contemplating issues of individual and collective rights (the topic of our panel discussion). The underlying question of this paper is whether a body of law built primarily on the recognition of individual rights can also be a facilitator of collective rights. My research suggests that it can. First, this paper demonstrates that the current international human rights framework actually contemplates both collective and individual rights, and that the two are not mutually exclusive. Second, it analyzes one means by which international human rights law can facilitate collective rights-through the linking together of core human rights precepts. As we will see, the right to indigenous education under Article 14 of the UN Declaration makes little sense if it is not placed or analyzed within a wider range of human rights, such as the rights to self-determination and cultural integrity. Before expounding on either of these points, the paper briefly discusses the history surrounding Article 14 and the right to education.

Indigenous Rights and Democratic Rights in International Law: An “Uncomfortable Fit”? by Catherine J. Ioms Magallanes. 15 UCLA J. Int’l L. Foreign Aff. 111 (2010).

Over the last 25 years, international recognition of the human rights of indigenous peoples has been increasing. One aspect of this recognition notes that existing, relevant human rights law has not been applied to their particular situations, such that indigenous peoples have not been accorded their full human rights. A second aspect is the recognition that the understanding of human rights laws has needed to develop, and that more specific, relevant standards have needed to be articulated. This paper is concerned with the recognition of indigenous claims to greater control over and participation in decision-making over their lives. Indigenous peoples point to the lack of such control and participation as a significant problem and an impediment for achieving indigenous peoples’ human rights. The need to address this lack of control has been recognized internationally and has resulted in the development of international guidelines for doing so. However, the guidelines do not yet fit easily with existing international human rights laws on participation in decision-making within states. This paper aims to describe this “uncomfortable fit,” and hopefully also how it might be overcome. An assessment can be made of how well the emerging indigenous rights ‘fit’ with international human rights law, comparing law within the areas of indigenous rights and democratic rights. The indigenous rights do not yet fit within the standard interpretations of democratic rights, and there is thus a slightly “uncomfortable fit,” at least with respect to indigenous group rights to participation in political decision-making. There are, however, some positive illustrations for how such a fit might be made more comfortable so that indigenous peoples may be accorded their full human rights, and such illustrations will also be highlighted and examined.

Indigenous Women and International Human Rights Law: The Challenges of Colonialism, Cultural Survival, and Self-Determination by Rebecca Tsosie. 15 UCLA J. Int’l Foreign Aff. 187 (2010).

As indigenous peoples move toward full realization of their right to self determination, as affirmed by the text of the United Nations Declaration on the Rights of Indigenous Peoples, some have queried whether this will promote the ability of indigenous groups to violate the rights of vulnerable members, particularly women. International human rights law maintains a commitment to the equality of women within global societies, thereby raising the issue addressed by this article, which is whether there are potential conflicts between the feminist norms found within international human rights law and the norms applicable to indigenous peoples, which support the primacy of their rights to self-determination and cultural survival. Professor Tsosie suggests that a “Native feminist ethics” ought to provide the starting place for this discussion, and that indigenous rights must be considered within their respective cultural and historical contexts, as well as within the modem frameworks of governance that support indigenous self-determination. Professor Tsosie concludes that Native peoples must develop an appropriate basis for contemporary human rights in the exercise of their cultural sovereignty, a process that often implicates the norms that have fostered cultural survival for many generations.

Re-Enchanting the World: Indigenous Peoples’ Rights as Essential Parts of a Holistic Human Rights Regime by Siegfried Wiessner. 15 UCLA J. Int’l L. Foreign Aff. 239 (2010).

Indigenous peoples have maintained key features of their identity against many challenges over time. Under the banner-cry of cultural diversity, the modem community of states has recognized their rights to their culture, their self-determination, and their land. These novel communal rights are necessary elements of a legal regime that responds fully to human needs and aspirations.

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