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Published by Sándor Tóth

“Human rights empower us as members of the human family to participate as equals in the process of decision-making irrespective of who or what we are. Development seeks to make these circumstances more inclusive by extending them to the entire community.” Ratu Joni Madraiwiwi, Vice President, Republic of the Fiji Islands

“Human rights empower us as members of the human family to participate as equals in the process of decision-making irrespective of who or what we are. Development seeks to make these circumstances more inclusive by extending them to the entire community.” Ratu Joni Madraiwiwi, Vice President, Republic of the Fiji Islands

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Published by: Sándor Tóth on Dec 03, 2012
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Many groups that oppose human rights in fact gain considerable benefits from them. Of

note are Pacific groups that may openly oppose human rights on the basis that

international human rights conflict with indigenous rights, though indigenous rights are

recognised by the international human rights community as an intrinsic part of human

rights principles. This behavior is evident in the selective support of international

treaties, such as the international proposed draft of indigenous rights (which is yet to be


United Nations, Activities of the United Nations Statistics Division on International Migration (New

York: United Nations Statistics Divisions, 2002)


The World Bank, ‘Migration can deliver welfare gains, reduce poverty, says economic prospects 2006’

(World Bank media release, 25 November 2005)



Stefanie, G., “Migrant Human Rights: From the Margins to the Mainstream” (Migration Information,

March 1 2005)


accepted), the Draft Declaration on the Rights of Indigenous Peoples (DDRIP). It is

essential to understand that the international human rights treaty body system is only

able to be successful if all the mechanisms operate together. Partial ratification

(selective or with multiple reservations) of treaties makes minorities more vulnerable.

The treaties are meant to complement each other to offer full protection from tyranny

and exploitation of every group, not to marginalise some and give preference to the

rights of others. The UN encourages protections of indigenous rights, but social justice

demands that this must be in a manner that reflects principles of equality.

Indigenous and ethnic rights groups prosecuted in Fiji and Solomon Islands used the

bill of rights and the international human rights framework to mount their appeals

against conviction and imprisonment. It is poorly understood that it is the international

human rights system that provides the legal framework to oppose tyranny, exploitation

and marginalisation of not only indigenous peoples under threat, but other minorities.

The international human rights system and human rights nationally have enabled

indigenous peoples to gain unprecedented rights hitherto not recognised in law.

In the famous Mabo v Queensland decision in Australia,82

the High Court of Australia

upheld the claims of five plaintiffs from Murray Island (Mer) that Australia was

occupied by Aboriginal and Torres Strait Islander peoples who had their own laws and

customs, and whose 'native title' to land survived colonisation. It changed the

foundation of land law, overturning the doctrine of terra nullius (land belonging to no

one) on the basis of which British claimed Australia. This acknowledgment inserted the

legal doctrine of native title into Australian law. It recognised the traditional indigenous

rights of the Meriam people to their islands and their right to identity and non-

discrimination. The court also held that native title existed for all indigenous people in

Australia before colonisation. The court held that this native title exists today in any

portion of land where it has not legally been extinguished. The decision of the High

Court resulted in the Native Title Act 1993 (Cth), which attempted to codify the

implications of the decision and set out a legislative regime under which Australia's

indigenous people could seek recognition of their native title rights.83

There is little doubt that this decision is the result of human rights and the international

law system, which had created a different milieu in Australian courts, and the close

monitoring of the case by the Human Rights Committee which monitors ICERD.

Among the many arguments used was one that the plaintiff’s rights were protected

under article 5 of ICERD. The case brought to an end 10 years of litigation about

Aboriginal land rights. It resulted in Australia’s legal system being brought into line

with other legal systems throughout the world that already recognised native land


It is widely acknowledged that by the time the High Court decided Mabo, two things

had changed. First, the court had established a record of making decisions that

protected human rights. In 1982, in Koowarta v Bjelke-Petersen, it decided that the


Mabo and others v. Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 F.C. 92/014 (3 June 1992)


Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Overturning the

Doctrine of Terra Nullius: The Mabo Case, (Canberra, AIATSIS, 2004)


Castan, R., Mabo and Land Rights (Melbourne: Victorian Council for Civil Liberties, 1994)


Racial Discrimination Act 1975, which enacted ICERD, was valid. The court was

slowly developing a clear path towards recognition of fundamental human rights

through interpretation of the constitution and the common law. Second, the

understanding of Aboriginal land rights, the perspective on the rights of indigenous

peoples and the moral and social implications of a narrow legal view had significantly

changed as a result of human rights85

and the monitoring of it by the human rights

treaty bodies. As Brennan J stated in Mabo;

“The common law does not necessarily conform with international law, but

international law is a legitimate and important influence on the development of

the common law, especially when international law declares the existence of

universal human rights. A common law doctrine founded on unjust

discrimination in the enjoyment of civil and political rights demands

reconsideration. It is contrary both to international standards and to the

fundamental values of our common law to entrench a discriminatory rule which,

because of the supposed position on the scale of social organisation of the

indigenous inhabitants of a settled colony, denies them a right to occupy their

traditional lands.”86

The international human rights system has also allowed indigenous peoples to obtain

other benefits which accrue to them as members of that group.

In Lovelace v. Canada,87

Sandra Lovelace submitted a case to the UN Human Rights

Committee which administers the ICCPR under the Optional Protocol to the ICCPR.

Lovelace was born and registered a Maliseet in Canada, but she lost her rights and

native status under Canada's Indian Act after she married a non-native. She argued that

the Act was discriminatory on the basis of sex and violated the ICCPR protocol.

The committee stated that Canada was in violation of article 27 of the covenant because

Lovelace’s right to access to her native culture and language (as a member of a

minority) in a community with other members of her group had been blocked by the

loss of her right to live on her reserve. It is clear that the current legislation and

proposed future legislation can together ensure a balanced system that will protect

indigenous rights.

An accusation often levied at human rights is that it prioritises individual rights over

group rights, yet four of the seven core human rights treaties are dedicated to protecting

the rights of vulnerable groups or minorities under threat. These treaties are focused on

group rights in comparison to other more advantaged groups. ICERD, CRC, CEDAW

and ICRMW allow for affirmative action which grants those groups covered by the

conventions special privileges which are not considered unlawful discrimination. In no

way could it be argued that these conventions favour individuals over group rights

because the advantages accrue only if a person can demonstrate membership of that



Castan, R., (1994)


Mabo and others v. Queensland (No. 2) [1992] HCA p.23


United Nations Human Rights Committee, ‘Views of the Human Rights Committee under Article 5(4)

of the Optional Protocol to the International Covenant on Civil and Political Rights in the matter of

Lovelace v. Canada - Concerning Communication No. R.6/24’ [1982] 1, Canadian Native Law Reporter

1 <www1.umn.edu/humanrts/undocs/session36/6-24.htm>


The DDRIP is a similar draft treaty focusing in group rights of marginalised indigenous

peoples. It sets out the rights of the indigenous people of countries worldwide, as well

as the framework by which states or governments can protect and secure these rights.

The draft declaration deals with the rights of indigenous peoples in areas such as self-

determination, culture and language, education, health, housing, employment, land and

resources, environment and development, intellectual and cultural property, indigenous

law and treaties and agreements with governments. It also lays down guidelines states

and other organisations can use to make sure that the aspirations of indigenous people

are kept alive.88

However, as a draft, the declaration has not yet become part of international law and

therefore does not yet have legal force. All the core human rights treaties started as

draft declarations before they became binding treaties. One advantage of PICs being

part of the international human rights system through ratification of all core treaties is

that they will then be able to influence DDRIP becoming part of international law.

They will, however, have more bearing on the establishment of the DDRIP as a

convention if they are already participants in the rest of the UN treaty body system,

demonstrating their respect for all areas of human rights and not only those that are

politically convenient to them.

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