SAMARA UNIVERSITY

SCHOOL OF LAW

The Protection of Land and Territory Right of Indigenous Peoples

of Ethiopia under FDRE Constitution

BY:
TABAN TUT ROM

ADVISOR:
Mr. NURUYE BEYAN
(LL.B, LL.M, ASSISTANT PROFESSOR)

Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of

Bachelor of Laws (LL.B) at the School of Law, Samara University

January, 2021

Page 1 of 34
Contents Page
I. DECLARATION........................................................................................................

II. ACKNOWLEDGMENT..............................................................................................

III. ACRONYMS...............................................................................................................

CHAPTER ONE................................................................................................................

INTRODUCTION...............................................................................................................

1.1 Back Ground of the Study.........................................................................................

1.2 Statement of the problem................................................................................

1.3 Objective of the study......................................................................................

1.4 Significant of the study...................................................................................

1.5 Research questions...........................................................................................

1.6 Methodology...................................................................................................

1.7 Scope of the study...........................................................................................

1.8 Organization of the paper................................................................................

1.9 Limitation of the study....................................................................................

CHAPTER TWO..............................................................................................................

2. LITERATURE REVIEWS ON DEFINITION OF THE INDIGENOUS PEOPLES AND

LAND RIGHT PROTECTION
2.2. What are Indigenous Peoples and Their Land Right?...................................
2.2.1. Definition of Indigenous Peoples by International and Regional Organizations…..
2.2.1.1. ILO Convention’s Definition of Indigenous
Peoples……………………..
2.2.1.2. UNDRIP’s Definition of indigenous
Peoples……………………………..
2.2.1.3. UN Definition of Indigenous
People……………………………………..
2.2.1.4. World Bank Definition of Indigenous
People……………………………..
2.2.1.5. ACHPR
Approach…………………………………………………………
2.3. Some Examples of the National Definitions of Indigenous peoples……………….

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 2.4. Characteristics of Indigenous People……………………………………………….
2.5. Distinction of Indigenous Peoples and Minorities………………………………….
2.5.1. Similarity of Indigenous Peoples and Minorities…………………………..
2.5.2. A Difference between Minorities and Indigenous Peoples…………………
2.6. Misconceptions about Indigenous Peoples…………………………………………

CHAPTER THREE..........................................................................................................

3. RIGHTS OF INDIGENOUS PEOPLES’ UNDER INTERNATIONAL HUMAN RIGHTS

LAW……………………………………………………………………………………………
3.1. Introduction…………………………………………………………………….
3.2. The Evolution of Rights of Indigenous People in International Law…………….
3.2.1. Natural Law and Indigenous Peoples…………………………………..
3.3. Establishment of Different Institutions of Indigenous peoples…………………
3.4. Rights of Indigenous Peoples under regional human right laws…………………
3.5. The right of the Land and Territories……………………………………………..
3.5.1. Right of free and prior informed consent………………………………..
3.5.2. Right of compensation……………………………………………………
3.5.3. Right of consultation and benefits ………………………………………..
3.6. The right to Development…………………………………………………………
3.7. The right to Culture………………………………………………………………..
3.8. The right to Non-discrimination……………………………………………………
3.9. The right to education……………………………………………………………...

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Page 4 of 34
CHAPTER ONE

GENERAL FRAME WORK OF THE STUDY

1. INTRODUCTION

1.1. BACKGROUND OF THE STUDY

Indigenous peoples are defined by professor Siegfried Wisner as a descendent of the original
inhabitants of lands with which they share a strong often spiritual bond. These peoples are
desire to be, culturally, socially and economically distinct from the dominant group in
society, at the hands of which they have suffered, in the past or present, a pervasive of pattern
subjugation, marginalization, dispossession, exclusion and discrimination. 1The concept of the
indigenous peoples is an emerging area of modern international law. It is estimated that there
are more than 370 million indigenous peoples spread across 70 country worldwide. 2
Examples of indigenous peoples include; Inuit, in Canada, Native Americans in United
States, Spanish in Mexico, Amerindians in Brazil, Sami people in Northern Scandinavia,
Javanese, Sudanese, Bantenese, Betawi, Batak, Kuba, Mandar, Toraja, Dani, etc in Indonesia,
Adivasis (collectively) in India, Tuareg of the Sahara.3

Indigenous peoples have the right to; all human rights, including collective rights, land right,
privacy, equality and non-discrimination, self-determination, autonomy or self-government
nationality, life, liberty, security, protection from assimilation, language, development,
determine their own identity, and membership and the like.4

Throughout history, civilizations have continually worked to colonize and expand their
boundaries throughout the centuries.5 As new countries colonize and dominate the area, the
original inhabitants of land, or indigenous people, are at risk of losing their unique heritage. 6
Today, according to the UNPFII, there are more than 370 million indigenous people in about
70 countries worldwide.7 Indigenous peoples are renowned for their rich cultures, traditional

1
Proffessor Wiessner , supra note 5, p.115 .
2
Judith G. Bartlett et al, identifying indigenous peoples for Health Research in A Global context: A Review of
perspective and challenges, International Journal of Circumpolar Health, vol. No. 4, (2007), P.288
3
https:// en.Wikipedia.org/wiki/list of indigenous peoples/.[last accessed, Jan 20/2020]
4
http://.co.nz/files/5814/5618/4456/NZHR_Booklet_12_WEB.pdf. [last accessed, Jan 20/2020]
5
Right of indigenous people in proceeding of the conference on Inspiring Youth to create better world,
Montessori, 2014 PDF.
6
Ibid
7
Ibid
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knowledge systems and unique way of life. 8 In many countries, however, they are
dispossessed of their ancestral lands and territories, as well as deprived of their natural
resources upon which they depend for their survival, and this can result in the denial of their
very right to life.9 Many indigenous peoples continue to suffer discrimination, extreme
poverty and exclusion from political and economic power.10 Their belief systems, cultures,
and languages and ways of life are threatened, even to the point of extinction.11

Across many states, indigenous peoples contribute to the rich diversity of cultures and
languages, and of some 7000 languages currently spoken in the world; approximately 4000
languages are spoken by indigenous peoples.12

Ethiopia total population according to 2017 census reports is about 102.37 million in term of
minorities and indigenous peoples representation census list more than 90 distinct group in
country which includes Nuer, Anuak, Opo, Komo, and Dassenech, Erbore, Nyangaton,
Hamar in Gambella region and Lower Omo valley respectively, some of the groups meeting
the criteria for identification of indigenous peoples in Ethiopia include the pastoralists and
hunter or gatherer communities including the forest dwelling Majang/Majengir, who live in
Gambella region has been affected by land grabbing in recent years . 13 Ethiopia has been
largest livestock population in Africa and concentrate in the pastoral community which theirs
population is heterogeneous in its ethnic composition and social structure, having some larger
ethnic groups such as the: Afar, Oromo, and Somalia the rest are Omotic pastoralist groups
such as Dassenesh, Hamar, Nyangaton, Erbore as well as other groups living in western
lowland of Ethiopia.14

1.2. STATEMENT OF THE PROBLEM

The political and economic situation of land and territories right of the indigenous people of
Ethiopia is a tenuous one. The pastoralist people of southwestern low land of Ethiopia face a

8
Inter Parliamentary Union, Implementing the UN Declaration on the rights of Indigenous Peoples, Handbook
for Parliamentarian, IPU, 2014, P.3. PDF.
9
Dr.Cathal M. Dyle, Business and Human Rights: Indigenous Peoples Experiences With Access to Remedy,
AIPP Printing Press, London, 2015, p.1
10
Ibid
11
Ibid
12
Supra note 10
13
UN, State of the World’s Indigenous Peoples, New York, Volume1, 2009. (here in after ‘State of the world’s
Indigenous peoples’)
14
Www.Culturalsurvival.Org/Observation on the state of indigenous, supra note p.3-4 [last accessed, Jan,
20/2020]
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fragile existence, mainly characterized by unpredictable and unstable climatic conditions,
such as recurring droughts and floods.15

At socio-political level, the Ethiopian Government policy of villagization has seen many
pastoralist communities moved off from their traditional grazing lands by claiming that
“leasing the land to agricultural investment will help alleviate food insecurities, maximizing
the use of land and create jobs opportunity to increase employment of indigenous peoples that
will results access to health care provision and to primary and secondary education”.

While some of the land which has been leased in Gambella is leave vacant and remains
highly inadequate and also most of the jobs have gone to outsiders who have moved to the
areas in searching of jobs, such a land grabbing are now a day become major points of
contention as government leased million hectares of underutilized while these land is the
home of 15 million indigenous peoples such as farmers, hunters or gatherers and pastoralist
that are mostly affected indigenous peoples in Gambella, Lower valley of Omo basin and
Benishangul Gumuuz.16

They are also affected by persistent food insecurity, conflict, inadequate services and
infrastructure and they are among the poorest of the poor in terms of disposable incomes,
access to social services and general welfare.17 Besides these threats, in recent years, the land
on which many of these pastoralist peoples and communities live, have become the subject of
high demand from foreign investors.18

In Ethiopia, especially in Gambella indigenous communities find themselves displaced and

deprived of their traditional livelihoods and of access to their natural environment including
access to water, grazing, arable lands and forest resources. 19 Indigenous peoples whose
reside on country side of the south western part of the Ethiopia especially in Gambella are
facing many problems such as displacement from their livelihood by Foreign investor,
pollution of water by waste of industries, lack of grazing lands, lack of arable lands, lack of
adequate compensations and the like. The lack of Federalist structure and ongoing
marginalization of minorities and indigenous peoples has generated a powers keg in country
of more than 100 million people. The country villagization policy has now a day led many
small-scale farmers being moved from their traditional grazing land and theirs customary
15
ibid
16
Ibid
17
Ibid
18
http://www.iwgia.org/region/africa/ethiopia. [Last accessed, Jan 20/2020]
19
ibid
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right being violated, such villagization policy result in resettle those in rural areas to the areas
where they have better access to clean water, school, and health care but the promise of
amenities were yet provide in timely manner which has led to massive human right violation
in the these villages of Gambella indigenous peoples , because there is lack of consultation
and no specific policy and also no an adequate national legislation that protects indigenous
peoples and theirs land right due to that government fail to protect indigenous people right.

Ethiopia has neither ratified ILO Convention number, nor was present during the voting on
the UNDRIP. There is no clear provision in FDRE Constitution which talks about the right of
indigenous people and are applicable in its preamble and in all its contents it used the phrase
“Nation, Nationality, and Peoples of Ethiopia.” The absence of clear and specific law and
policy has aggravated the situation of indigenous peoples of Ethiopia.

1.3. OBJECTIVES OF THE STUDY

 The general objective of this study will analyzed the protection of the land and territories
right of indigenous peoples and theirs treatment under FDRE Constitution.
 The specific objective of this study will includes; showing gap in FDRE Constitution if
there will be a protecting of the land and territory right of indigenous people and
proposing the solution if there is gap in FDRE Constitution.

1.4. SIGNIFICANCE OF THE STUDY

The researcher selects this topic due to the fact that the protection of the land and territories
right of indigenous peoples of Ethiopia is not exciting. This study will have a paramount
importance for law students because it will enable them to understand about indigenous
people and their right under FDRE Constitution. It will also important for policy makers to
prepare inclusive policy. It will necessary for every society as whole and particularly for
indigenous peoples to know their right and claim it to be protected, promoted, respected, and
to be fulfilled. Finally, it will also important for those who want to carry out further research
on the right of indigenous people as an input.

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1.5. RESEARCH QUESTION

The following research questions are going to be answered after the completion of this study.
These include:

 What are indigenous peoples?

 What are their rights?
 Why we need to protect the land and territories rights of indigenous peoples?
 Whether the land and territories right of indigenous peoples recognized under FDRE
Constitution adequate or not?

1.6. METHODOLOGY

This research will be doctrinal and descriptive research. The researcher will go to use
doctrinal research method due to the nature of the research objectives and research questions.
In conducting this Paper, the researcher is going to analyze the existing literature review,
analysis of relevant provisions of FDRE Constitution, ACHPR, UNDRIP, ILO, Books and
other sources including an electronic sources through internet.

1.7. SCOPE OF THE STUDY

This paper will mainly focus on FDRE Constitution. Also referring international law will
inevitable since it is important to analyze domestic law. Thus, the researcher will go to focus
on these laws as far as they are concerned with the right of indigenous peoples.

1.8. THE ORGANIZATION OF THE PAPER

This paper will comprise of four chapters. Chapter one is covered by proposal of the study.
Chapter two discusses the meaning and nature of indigenous peoples. In Chapter three the
researcher will going to discuss the rights of indigenous peoples under international human
rights law. Chapter four focuses on the protection of rights of indigenous peoples under
FDRE Constitution. It also discusses the existing problems which are being constraint in
realizing the rights of indigenous peoples in Ethiopia. Finally, this chapter also includes
conclusions and recommendations.

1.9. LIMITATION OF THE STUDY

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While conducting this research I will face lack of sources already written as there is no much
research done on this topic, especially, in Ethiopia. Lack of sufficient time will also another
problem which has impact on the outcome of this research, because, it is overloaded with exit
exam and as a result it will have effect on the outcome of the research. The other limitation
will that I have no personal computer and Universities access of computer is not enough and
also the existing computers have no permanent internet connection. This will prevent me not
to download sources as needed and as I want.

CHAPTER TWO

2. LITERATURE REVIEWS ON DEFINITION OF THE INDIGENOUS PEOPLES AND

LAND RIGHT PROTECTION
2.1.1. What are Indigenous Peoples and Their Land Right?
Indigenous peoples are defined by professor Siegfried Wisner as a descendent of the original
inhabitants of lands with which they share a strong often spiritual bond. 20 According to the
argument of Jeff Corn tassel, the definition of Flake Wilmer was too general which even did
not clearly addressed whether indigenous people are different in terms of their culture and
goals from other groups like non indigenous people and minorities.21

On the other hand, the definition does not clearly address who would have assimilations
policies and those indigenous people who would resistant assimilation policy. 22 Because of
this, the definition is too general which did not indicate the existence of non-indigenous
people in after math of colonization.23 However, some scholars like James Anaya and
Solomon argue that the group of people who runs the assimilations policy is the non-
indigenous people who had dominant position in the socio-political system of the nation state.
Hence, under definition of Frank Wilmer, the non-indigenous people are the groups of people
who had socio-political Dominance and who assimilates the indigenous people of the nation
state.24

20
supra note p, 1
21
Gizachew Wondie, Indigenous and Non Indigenous People’s Rights in Benishangul Gumuz Regional State:
The Right to Political Participation of Non-indigenous People in ‘Bambasi Woreda’’ MA Thesis, College of
Law and Governance Studies of Addis Ababa University, 2015, [unpublished], p. 26. (Here in after
‘Gizachew’).
22
Ibid
23
Ibid
24
Ibid
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The more flexible definition of indigenous people was given by Kings bury by establishing
the Following four essential requirements:

 Self-identification as distinct ethnic groups;

 Historical experience or counting vulnerability, sever disruption dislocation with the
region;
 Long connection with the region;
 The wish to retain a distinct identity.

2.1.2. Definition of Indigenous Peoples by International and Regional Organizations

2.1.2.1. ILO Convention’s Definition of Indigenous Peoples

The ILO convention number 1907 viewed the plight of indigenous peoples within the concept
of protecting individual rights not as a community, this treaty was ratified by 18 countries. In
1989, a new treaty, ‘The Indigenous and Tribal Peoples Convention 1989 (NO.169)’
provided greater protection for indigenous people than the earlier convention by considering
issues such as education, health, land and territory right and employment.25

It is designed specifically to defend indigenous peoples by improving their living conditions,

while preserving the identity and culture of the group as a whole . 26 According to ILO
convention number 169, a definition of indigenous people is stated in article 1 (1b) of the
ILO convention concerning indigenous and tribal peoples as follows: This convention
applies to […] people in independent countries who are regarded as Indigenous on account
of their descent from the populations which inhabited the country or a geographical region
to which the country belongs at the time of conquest, colonization or establishment of the
present state boundaries and who irrespective of their legal status, retain some, or all of
their own social, economic, cultural and political institution. Furthermore, article1 (2)
leaves significant discretionary power to the people themselves to evaluate whether they
regard themselves as indigenous .27

2.1.2.2. UNDRIP’s Definition of indigenous Peoples

The identification outlined by the chairperson of the United Nations Working Group on the
Rights of Indigenous Populations, Erica-Erene Daes designates certain peoples as indigenous

25
Anaya, S. James, Indigenous Peoples in international Law, New York: Oxford University Press, 2004, p. 55
[Here in after ‘Anaya’].
26
International Labor Organization, General Conference, 7th session, Geneva, June 27, 1989, available at
http://www.ilo.zaoerv.de/59_1999_S_543_592.pdf.
27
Ibid
Page 11 of 34
a) Because they are descendants of groups which are in the territory of the country at the
time when other groups of different cultures or ethnic origins arrived there;
b) Because of their isolation from other segment so the country’s population they have
preserved almost intact the customs and traditions their ancestors;
c) Because they are, even if only formally, placed under a state structure which
incorporates, national, social, and cultural characteristics alien to theirs institutions .28

Instead of offering a definition, Article 33 of the UNDRIP underlines the importance of self-
identification, that indigenous peoples themselves define their own identity as;
 Indigenous peoples have the right to determine their own identity or membership in
accordance with their customs and traditions but it does not impair the right of
indigenous individuals to obtain citizenship of the states in which they live.
 Indigenous peoples have the right to determine the structures and to select the
membership of their institutions in accordance with their own procedures.29

2.1.2.3. UN Definition of Indigenous People

Considering the diversity of indigenous peoples, an official definition of “indigenous” has not
been adopted by any UN system body. Instead the system has developed a modern
understanding of this term based on the following:
 Self-identification as indigenous peoples at individual level and accepted by the
community as their member
 Historical continuity with pre-colonial or pre-settler societies
 Strong link to territories and surrounding natural resources
 Distinct social, economic, and political entity
 Distinct language, culture, and beliefs
 Formation of non-dominant groups of society
 Resolve to maintain and reproduce their ancestral environments and systems as
distinctive peoples and communities.30

2.1.2.4. World Bank Definition of Indigenous People

28
Supra note 25.

29
The State of the World’s Indigenous Peoples, Supra note 26, p. 16
30
www. iwgia.org/culture-and-identity/identification-of-indigenous-peoples[last accessed, May, 13/2020

Page 12 of 34
Draft Operational Policy 4.10 does not employ a specific definition of the term “indigenous
peoples” as does DOP 4.20. Instead it stated that there is “no universally accepted definition”
and therefore, it will “not define the term.” Paragraph 4, however, states that for the purpose
of DOP the term “indigenous people” refers to “a distinct, vulnerable, social and cultural
group” Possessing a number of characteristic in varying degrees. These characteristics
include: self-identification, as indigenous and recognition by others; “collective attachment”
to distinct habitats land or territories and the natural resources there in; the presence of
“customary cultural, socio-economic or political institutions” separate from those of
dominant society; an indigenous language, often different from national language.31

Paragraph 4 further provides that indigenous peoples who have “lost collective” attachment
because of “forced severance” remain eligible for application of the policy. Collective
attachment means that for generations there has been a physical presence in and economic
ties to lands and territories right that are traditionally owned, or customarily used or occupied
by the group concerned, including areas which hold special significance for it, such as sacred
sites.32

2.1.2.5. ACHPR Approach

From the studies carried out on this issue and the decisions made on the matter, the ACHPR
is view that, a definition is not necessary or useful as there is no universally agreed definition
of the term and no single definition can capture the characteristics of indigenous population.
Rather it is much more relevant and constructive to try to bring out the main characteristics
allowing the identification of the indigenous populations and communities in Africa.

Thus the major characteristics, which allow the identification of Africa’s indigenous
communities is the favored approach adopted in regional and it is the same approach at the
international level.33 The port of the Working Group of Experts on Indigenous Populations /
Communities of African Commission on Human and Peoples Right’s […] emphasizes that
the concept of indigenous must be understood in a wider context than only the colonial

31
UN Definition of indigenous people, available at<http://www.UN.org/esa/socdev/unpfii/documents/5
session_factsheet1.pdf>
32
World Bank Draft Indigenous Peoples Policy 4.10, available at<http://arizona/Journal.org/wpcontent/
uploads/2015/11/mackey-Formatted.pdf
33
Ibid
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experience.34 The focus should be on more recent approaches focusing on self-identification
as indigenous and distinctly different from other groups within a state; on special attachment
to and use of their traditional land where by ancestral land and territory has a fundamental
importance for their collective physical and cultural survival as peoples; on experience of
subjugation, marginalization, dispossession, exclusion or discrimination because these
peoples have different cultures, ways of life, or modes of production than the national
hegemonic and dominant model .35

2.2. Some Examples of the National Definitions of Indigenous peoples

The absence of universally agreed definition for “indigenous” people in international level,
then the special rights attached to indigenousness makes the national states to issue their
domestic decision and definition of ‘indigenous’ people in the irrespective of their territorial
jurisdiction. Hence different states had different conception and put subjective criteria for
conceptualizing and defining ‘indigenous’ people.36

In Australia, the legal and administrative definition of “an a origin” is one who had an
original descendant and accepted by others as a original. 37 As Helen Corbet states in
Australia, person is considered to be a origin for the purpose of law, and especially
constitutional law, if he/she is of a origin descent or (albeit mixed), identifies himself or
herself as a original, is recognized by the original community as such.38

In United States, the federal government agencies established differing criteria to determine
who is an ‘Indian’ in which these groups are guaranteed a special federal government
consideration. Hence, for the purpose of several federal programs, a qualified Indian is one
“who is member, or one forth degree or more blood quantum descendent of member of any
Indian tribe.”39

The Sami people in Nordic countries (Sweden, Norway, and Finland) had also the same
status like that of the Indians in USA and origin of Australia. Accordingly, the Sami is one;

34
http://www.achpr.org/files/special-mechanisms/indigenous populations/un_advisory_idp_eng.pdf>[last
accessed May, 13/2020]

35
The state of the world’s indigenous peoples, Supra note 15, p.16.
36
Ibid
37
Gizachew, supra note3,p.30
38
Ibid
39
Ibid
Page 14 of 34
“who shows that it is probable, that he has or has had Sami language as language of home, or
at least one of his/her parents or grandparents has or has had Sami language as a language of
home, and at least he has one parent, who is registered or has been registered, in the register
of voters for ‘same in get.”40

2.3. Characteristics of Indigenous People

When we talk about the characteristics of indigenous peoples it is better to understand that
the attempt to define the concept of “indigenous people” done till today is manifested as the
characterization of indigenous peoples. If we take the above discussed points about the
definition of indigenous peoples by scholars and different organizations, all of them are found
to be the characterization of indigenous peoples.

We can look Martinez Cobo’s Definition, UN, World Bank, UNDRIP, and the like. For
example let as look the characterization of indigenous peoples by the United Nations
Working Group on the Right to Indigenous Populations. The identification outlined by the
chairperson of the United Nations Working Group on indigenous Populations, Mme Erica–
Irene Daes designates certain peoples as indigenous,
 Because they are descendants of groups which were in the territory of the country at the
Time when other groups of different cultures or ethnic origins arrived there;
 Because of their isolation from other segments of the country’s population they have
Preserved almost intact the customs and traditions of their ancestors which are similar to
those characterized as indigenous and;
 Because they are, even if only formally, placed under a state structure which
incorporates national, social, and cultural characteristics alien to theirs.41

As researcher have recognized from different literatures which tried to define the term
“indigenous people” characterization of the term is more important than defining the term.
Because, when we try to define the term we may incidentally exclude indigenous peoples
those can be included under the ambit of the indigenous people, but when we characterize the

40
Ibid

41
Ibid, p .31
Page 15 of 34
term we can include a group of peoples those who want to be treated as an indigenous
people.42
2.4. Distinction of Indigenous Peoples and Minorities

2.4.1. Similarity of Indigenous Peoples and Minorities

Minority groups are framed according to shared ethnic, religious, linguistic or cultural
characteristics and the members of the group acknowledge a common identity on these
basis.43 Indigenous peoples also share common ethnic, religious, linguistic or cultural
characteristics. Minorities and indigenous people’s rights have been acknowledged through
international treaties as distinct rights that are part of these groups’ human rights; their
distinct identity requires special protection from discrimination as well as special action to
promote the preservation of their cultures, religions, and languages. Their equal participation
in the public sphere needs to be supported. 44 The same law can be applied for both. For
example, article 27 of ICCPR can be applied both for minority and indigenous people.45

2.4.2. A Difference between Minorities and Indigenous Peoples

Indigenous people in many cases can claim to have been settled in their territory continuously
and prior to any other groups and have also maintained a culture that is strongly linked to
their ways of using land and natural resources. This distinction is reflected in separate
international standards for indigenous peoples.46 The former Special Rapporteur of the UN,
Francesco Capotorti, developed a definition, which become the most prominent concept and
starting the points of any discussion.47

According to his definition, a minority is a group which is numerically inferior to the rest of
the population of a state and in a non-dominant position, whose members possess ethnic,
religious, or linguistic characteristics which differ from those of the rest of the population,
and who if only implicitly maintain a sense of solidarity directed towards preserving their
culture, tradition, religion or language.48 The crucial difference between minority rights and
42
Identification of indigenous peoples, available at <www.iwgia.org/culture_and_identity/identification-of
indigenous-Peoples >[last accessed May,13/2020]

43
Ibid
44
Alexandra Hugghes, PRSPs, Minorities and Indigenous Peoples-An issue paper, 2005, p. 9. ( here in after
‘Hugghes’)
45
Ibid
46
Ibid
47
Ibid
48
Ibid
Page 16 of 34
indigenous rights is that minority formulate as individual rights whereas indigenous rights are
collective right.49

2.5. Misconceptions about Indigenous Peoples

One of the conceptions regarding indigenous peoples is that advocate for the protection of
the land and territory rights of indigenous peoples would be to give special rights to some
ethnic groups over and above the rights of all other groups within a state. 50 The issue is that
certain marginalized groups are discriminated in particular ways because of their particular
culture, mode of production, and marginalized position within the state. 51 This is a form of
discrimination which other groups within the state do not suffer from. 52 It is legitimate for the
marginalized groups to call for protection of their land and territory rights in order to alleviate
this particular form of discrimination.53

A closely related misconception is that a term “indigenous” is not applicable in Africa as all
Africans are indigenous.”54 They do not use this term to denial all other Africans their
legitimate claim to belong to Africa and identity as such. They are using the present day
broad understanding of the term because it is a term by which they can very adequately
analyze the particularities of suffering and by which they can seek protection in international
human rights law and moral standards.

Another misunderstanding is that talking about indigenous land and territory right will lead to
tribalism and ethnic conflict; this is, however, turning the argument upside down which is
caused by the exists of a rich variety of ethnic groups within basically all African states, and
multiculturalism in a living reality but giving recognition to all groups, respecting their
differences and allowing them all to flourish in a truly democratic spirit does not lead to
conflict, but to prevents conflict.55 Conflict does not arise because people demand the rights
but because their rights are violated. 56 Finding ways to protect the human rights of

49
Ibid
50
Indigenous peoples of Africa the forgotten peoples, the African commission’s work on indigenous peoples in
Africa 2006. P.11. Available at <www.igwia.org>[last accessed May/3/2020]. (Here in indigenous peoples of
Africa.)
51
http://www.global issues.org/693/rights-of-indigenous people [Last accessed May/ 3/2020].
52
Ibid
53
Vicki, Grieves, original Spirituality: original philosophy, the bases of original social and emotional well
being, Discussion Paper No.9, Cooperative Research Centre for original Health, Darwin, 2009, p.15
54
Ibid, supra note 50
55
Ibid
56
Indigenous peoples of Africa, supra note 50
Page 17 of 34
particularly discriminated groups should not be seen as tribalism and disruption of the unity
of African state;

The researcher think that the above misconceptions are not genuine and far from reality but
the claim about the right of indigenous people is raised due to the fact that human rights are
universal and everybody has the right to enjoy it, while unfortunately, there are some groups
those that cannot enjoy human rights entitled to them because of different reasons. These
groups include: indigenous peoples, children, women and the like. For example, indigenous
people could not exercise their political right in many countries due to historical injustices
and continued discrimination. Talking about the protection of land and territory right of such
groups cannot give special right to those groups. Rather it helps them to exercise their human
rights which other peoples are enjoying. That means human rights will be applied equally for
all human beings. If human rights are respected equally for everybody, there will not be
tribalism, conflict and territorial disintegration.57

57
Indigenous peoples of Africa, supra note 50
Page 18 of 34
CHAPTER THREE

3. RIGHTS OF INDIGENOUS PEOPLES’ UNDER INTERNATIONAL HUMAN RIGHTS

LAW
3.1. Introduction

The jurisprudential beginnings on the rights of indigenous peoples and the birth of
international law can be associated with pre-positivist conceptions of natural law as
expressed by the 16th century Spanish theologians Francis code Vitoria, Bartolom me DeLas
Casas and others collectively referred to as the Spanish school. 58 Concerned with the right of
Indians against the Spanish conquest adores, and more broadly, the conquest and
colonization of the New World by European powers, these jurists sought to espouse the legal
and moral relationship between the European states and indigenous peoples, while their
philosophies were not altogether sympathetic, they maintained, that indigenous peoples were
determining communities who owned their lands and who held rights under natural law,
whether derived from God, or as Grotius suggested, from reason, above the positive laws of
the state.59

3.2. The Evolution of Rights of Indigenous People in International Law

3.2.1. Natural Law and Indigenous Peoples

The arrival of Christopher Columbus in the so-called New World of the Americas prompted
the development of the doctrine of discovery by Spanish and other European explorers,
According to this doctrine, the lands of the Americas were terra nullius-meaning vacant
lands–and the natives of those lands were not peoples with rights because of their primitive
culture and divergence from the Christian European cultural norms of religious belief and
civilization.60 Thus, by suppressing and taking away lands and resources from the natives by
force and threat of war, because of this belief in the superiority of the European culture and
polity, it set in motion on development of the Eurocentric legal norms in relation to peoples
living in the new world.61

58
Ibid
59
OdetteMazel, the Evolution of Rights: Indigenous Peoples and International Law, Vol.13, No.1,
2009.P.140(here in after Mazel .)
60
Ibid
61
TashiPhuntsok, Indigenous Peoples under International Law: An Asian Perspectives, LLM The University of
Western Ontario, London, Ontario, Canada, 2012.[unpublished]p.29. (here in after ‘Phuntsok’.)

Page 19 of 34
In order for Europeans to over reigns and assert their absolute rights of indigenous lands and
territory in the Americas, they had to rely on the popes’ approval to establish heir legitimacy,
these sovereign rulers of Europe used religious authority in the secular sphere to legitimize
their jurisdiction over some parts of the land again the sovereigns.62 Francisco Vitoria, In the
Indians Lately Discovered (1532), held that Indian tribe possessed certain original
autonomous power and entitled to land and territory which the Europeans should respect. 63
The notion that the popes’ grant of Indian lands to the Spanish monarch in the papal bull
established legal title to new world lands was rejected by Vitoria. 64 Hugo Grotius, a Dutch
legal theorist, also rejected title by discovery of lands inhabited by human beings and claimed
that it should be rejected “even though the occupant may be wicked, may hold wrong views
about God, or may be dull of discovery applies to those things which belongs to no one.”
His natural law theory was, dictated by right reason rather than the will of God. So, Grotius
asserted that just wars could not be waged due the unwillingness of Indians to accept
Christianity, which is a European belief system. Thus natural law overall, supported the
universal moral code for all human kind that also respected the existence and identity of
indigenous peoples in Americas. 65

3.3. Establishment of Different Institutions of Indigenous peoples

Working Group on Indigenous Populations (WGIP) was established by the sub commission
on the prevention of discrimination and protection of minorities with a mandate to review
developments pertaining to the human rights of indigenous populations and to give attention
to the evolution and drafting of standards concerning the right of the land and territory of
such populations.66

In 2000, the UN economic and social council (ECOSOC) established the Permanent Forum
on Indigenous Issues to provide expert advice on indigenous right on their land issues to the
council, as well as to UN programmer funds and agencies; to raise awareness… and to
prepare and disseminate information on indigenous right based on their territory issues.67 In
62
Phuntsok, supra note 76 Thesis
63
Sharon Helen Venn’s, Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous
Peoples, Penticton, British Colombia,1998, para.2
64
Dana-Lee Young Wolfe, Indigenous peoples and International Law: The Cherokee. Available at
http://www.sfu.ca/palys/crim429 young wolfe-Thecherokee.pdf
65
Ibid.

66
Ibid.
67
BikoNagara, Opening the first Door to the UN (2003) UN Chronicle 20.P.21
Page 20 of 34
2001, UN Special Rapporteur on Rights of Indigenous Peoples land and territory established
due to the increase in global attention to human rights situation of indigenous peoples, the
adoption of draft declaration and principles with regard to the protection of the land right of
indigenous peoples.68 Its mandate includes: examining ways and means of overcoming
existing obstacles to the full and effective protection of the land rights of indigenous peoples;
togather, receive and exchange information and communications from all relevant sources
including government, indigenous peoples, their institutions and organizations; to propose
recommendations and; to work with Expert Mechanism on the Right of Indigenous Peoples
and other human right organizations.69

In 2007 the Expert Mechanism on the Right of Indigenous Peoples established by Human
Right Council, under resolution 6/36 as a subsidiary body of the council replaced the UN
Working Group on Indigenous Populations, which has structure of the disbanded UN
Commission on Human Rights.70 The mandate of EMRIP is to provide the ‘Human Right
Council with thematic advice inform of study and research. It also suggests proposals to
council for its consideration and approval.71

3.4. Rights of Indigenous Peoples under regional human right laws

Fundamental rights are inalienable and inherent human rights that every human being has
from birth, regardless of race, ethnicity, gender, religion, class as well as indigenous origin
and identity.72 Rights of indigenous peoples on their land and territory are rooted in human
rights enshrined in the UN charter and various international human right treaties and
instruments that are often expressed as fundamental rights in the constitutions of states and
rights under domestic laws of many countries.73 The most comprehensive international
human rights instrument on indigenous peoples is the UN declaration, It does not create

68
StevenC.Perkins, Researching Indigenous Peoples under International Law [1992] Available at
http://intelligent-internet.info/law/ipr2.html.
69
Special Rapporteur on the Rights of Indigenous peoples, online OHCHR. Available at< http://www.ohchr
(EN) Issue /I Peoples /Indigenous peoples/pages/ Sri peoples Index. Aspex> [last accessed October 7/2020]
70
Human Right council Resolution 15/141

71
http://www.ohchr/EN/Issues/Ipeoples/EMRIP/pages/EMRIPIndex.aspx[Lastaccessed October 1 2020].
72
Ibid
73
International Labor Standards Department, Indigenous and Tribal peoples’ Rights in Practice, a progamme to
promote ILO convention No.169,2009,p.32. (here in after ‘Indigenous Tribal peoples Rights in Practice’)
Page 21 of 34
rights but, elaborate on existing ones that are enshrined in various international human right
treaties and instruments, placing them in the context of indigenous peoples’ realities.74

The rights in the UNDRIP are recognize as minimum standards “for the survival, dignity and
well-being of the indigenous peoples of the world’’. 75 The rights of indigenous peoples
include: All human rights, including collective rights, equality and non-discrimination, the
UN, began to rethink the discretion of states with regard to the treatment of their own
citizens.76 The prevailing ideology remained positivist, but human rights: became a proper
subject for international law as international legal theorists accepted that natural law’s moral
concepts of rights that could form the basis of what states adopted and recognized as
international law.77
The charter of UN adopted in 1945, was the first international instrument to embody human
rights and self-determination of peoples, and to promote fundamental freedoms of all as the
main purpose of the UN.78 The charter opened the way for non-state participation in the
deliberative processes of the UN economic and social council by various NGO’s as well as
experts acting in their individual capacity.79 Belgium attempted to apply universally the self-
determination principle to indigenous peoples at UN, claiming that: a number of states were

administering within their own frontiers territories which were not governed by the ordinary
law; territories with well-defined limits, inhabited by homogenous peoples differing from
theirs population in race, language, and culture.80 What became known as ‘Belgian Thesis’
was, however, defeated as states regarded Indigenous peoples as minorities within states, and
they were therefore entitled only to general minority rights.81 The ILO Convention NO.107,
became the first Convention within the UN fame work to deal exclusively with indigenous
peoples.82

74
IPU, Implementing the UN Declaration on the right of Indigenous peoples, Hand book for parliamentarian
No23.
75
Indigenous and Tribal peoples’ Rights in Practice, supranote118,p.13.
76
Article 43 of the UNDRIP
77
Mazel,Supra note 73, p.142.

78
Ibid
79
Charter of the United Nations Article 1(2)-(3), 55, 56, and 73.
80
Charter of the United Nations, Article 71 (implication)
81
Patrick Thornberry Indigenous Peoples and Human Rights 2002, p.92.
82
Mazel, Supra note 73, p.153
Page 22 of 34
Developed alongside the decolonization movement, ILO Convention NO.107 was formed as
a result of studies and expert meetings that elucidated the vulnerability of the indigenous
workers and sought to promote economic and social equality and integration with other
citizens of the state.83 The convention was, however, highly assimilationist. 84 Despite this, the
convention was significant in bringing recognition of Indigenous peoples is notable for its
acknowledgement, although qualified, of indigenous customary laws and the right of
collective land ownership.85

The adopted convention in 1966, ICCPR, though not containing any specific articles on
indigenous rights, nonetheless, applies to the concerns of indigenous peoples. 86 Importantly,
article1 of ICCPR recognizes the right of peoples’ to self-determination, introducing the
possibility of group rights. Under general international law, however, Human Rights
Committee has failed to clarify the ‘people’ to whom article1 applies, and how claims might
be properly brought before the committee. 86 Article 27 of the ICCPR which expressly applies
to minorities, has been utilized more commonly by indigenous peoples. It states: In those
states in which ethnic, religious, or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in conformity with the other members of their group,
to enjoy their own culture, to profess and practice their own religion, or to use their own
language.

Indigenous peoples have been successful to some extent with their claims under article 27 to
the Human Right committee, pursuant to the first optional protocol to the ICCPR, which
allows individual communications once ‘all domestic remedies’ have been exhausted.87
International Labor Organizations convention on Indigenous and Tribal peoples (ILO
Convention169), which is the central feature of contemporary treatment of indigenous
peoples at international law and remains one of the most significant conventions in the human
right system for indigenous peoples, was adopted.88

83
Anaya,Supra note 35.
84
Ibid
85
Preamble of ILO Convention No.107.

86
Anaya,Supra note 35, p.58.
87
Mazel, Supra note 73, p.143.
88
Ibid

Page 23 of 34
3.5. The right of the Land and Territories

Most indigenous peoples have special relationship to land or territories they inhabit. 89 It is
where their ancestors have lived and where their history, knowledge, livelihood, practices and
beliefs are developed so, we need to protect the land or territory right of the indigenous
people .90 In the words of UN special Rapporteur Martinez Cobo; “It is essential to know and
understand the deeply spiritual special relationship between indigenous peoples and their land
right as basic to their existence as such and to all their beliefs, custom, tradition and
cultures…for such people, the land and territory is not merely a possession and a means of
production and also not a commodity which can be acquired but a material element to be
enjoyed freely and need protection’’.91

The centrality of the concept of land and territories is strongly reflected in ILO convention
169, which has a serious of provisions to explain the concept of land and territories right of
the indigenous people; the ownership; as well as the requirements for identifying the land
right protection and resolving of the land claims. 92 As the central starting point, ILO
convention No.169 under Article131; applying that the governments shall respect and protect
the special importance for the culture and spiritual values of the peoples concerned of their
relationship with the lands or territories, or both as applicable, which they occupy or
otherwise use, and in particular the collective aspects of this relationship.

The use of the term lands in Article 15 and 16 shall include the concept of territories, which
covers the total environment of the areas which the peoples concerned occupy or otherwise
use.93 This is re-affirmed in Article 25 of the UNDRIP which stipulates that: Indigenous
peoples have the right to maintain and strengthen their distinctive spiritual relationship with
their traditionally owned land or otherwise occupied and used their land, territories, water
bodies and other resources and to uphold their responsibilities to the future generations in this
regard.94 They have right to live dependently on the land because such a land provides them
their basic necessities including food. If the right to land is not protected, the right to life has
been violated. The land and territory is the basis for most indigenous people’s economies
89
Ibid
90
Ibid
91
Rudiger, Wolfrum, The Protection of Indigenous Peoples in International Law,1999,p.377
92
Ibid
93
Indigenous and Tribal peoples’ Rights in Practice, supra note 118, p.91
94
Ibid, p.98

Page 24 of 34
livelihood strategies, traditional institutions, spiritual well-being and distinct cultural identity,
so it must be protected. 95 consequently the loss of ancestral lands threatens their very survival
as distinct communities and peoples. It must be understood that when the convention talks
about “lands” the concept embraces the whole territory they use, including forests, rivers,
mountains and coastal sea, the surface as well as the subsurface. Considering the crucial
importance of lands and territories for indigenous peoples, the convention contains a serious
provision to protect their right to ownership and possession.96

ILO convention No 169 stipulates that: Article 141 provided the right of ownership and
possession of the peoples concerned over the lands which they traditionally occupy shall be
recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of
the peoples concerned to use the lands that are not exclusively occupied by them, but to
which they have traditionally had access for their subsistence and traditional activities.
Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators
in this respect. Governments shall take steps as necessary to identify the land which the
peoples concerned traditionally occupy, and to guarantee effective protection of their right of
land ownership and possession. Adequate procedures shall be established within the national
legal system to resolve land claims by the people concerned.97

Article 26 of UNDRIP
1) Indigenous peoples have the right to the lands, territories and resources which they have
traditionally owned occupied or otherwise used or acquired.
2) Indigenous peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired.
3) States shall give legal recognition and protection to these lands or territories and
resources, such recognition shall be conducted with due respect to the customs, traditions
and land tenure systems of the indigenous peoples concerned. Considering the crucial
importance of lands and territories for indigenous peoples’ it is obvious that any non-
voluntary or forced displacement have severe impacts, not only on their economies and

95
Indigenous and Tribal peoples convention 169, Geneva, June 1989. (here in after ILO Convention 169)
96
United Nations Declaration on the Rights of Indigenous Peoples, UN, adopted on 10th plenary meeting13
97
Indigenous and Tribal Peoples Rights in Practice, supra note 118, p.98.

Page 25 of 34
 livelihood, strategies but also on their very survival as distinct cultures with distinct
languages, institutions, beliefs.98

3.5.1. Right of free and prior informed consent

The ILO 169, under article 16 subject to the following paragraphs;

1) The peoples concerned shall not be removed from the lands which they occupy.
2) Where the relocation of these peoples is considered necessary as an exceptional measure,
such relocation shall take place only with their free and informed consent. Where their
consent cannot be obtained, such relocation shall take place only following appropriate
procedure established by national laws and regulations, including public inquiries where
appropriate, which provide the opportunity for effective representation of the peoples
concerned.
3) Whenever possible, these peoples shall have the right to return to their traditional lands,
as soon as the grounds for relocation cease to exist.
4) When such return is not possible, as determined by agreement or, in the absence of such
agreement, through appropriate procedures, these peoples shall be provide in all possible
cases with lands of quality and legal status at least equal to that of the lands previously
occupied by them, suitable to provide for the present needs and future development.
Where the people concerned express a preference for compensation in money or in kind,
they shall be so compensated under appropriate guarantees
5) Persons thus relocated shall be fully compensated for any resulting loss or injury. 99The
first basic principle, established in Article 161) of the convention, is that indigenous
peoples shall not be removed from their lands. This is the basic principle that should be
applied under normal circumstances. However, acknowledging that there may be
circumstances where this becomes unavoidable, Article16 (2) establishes that this should
be only as an exceptional measure.100 To insure that such situations are handled in an
adequate way that respects indigenous peoples’ rights and integrity, Article16 (2) further
stipulates that relocation should only take place with their free and prior informed
consent. Free and informed means that the indigenous peoples concerned understands
fully the meaning and consequence of the displacement that they accept and agree to it.

98
Ibid
99
ILO Convention 169,Supranote 129,
100
UNDRIP;Supranote 130,Article26

Page 26 of 34
 Obviously, they can do sonly after they have clear and accurate on all the relevant facts
and figures. If indigenous peoples do not agree, and there location is still unavoidable,
Article16(2) outlines that the relocation should only take place following appropriate
procedures established by national legislation and including public inquiries where
indigenous peoples have the opportunity to effectively present their views

3.5.2. Right of compensation

Article 16(5) of ILO expresses that the compensation shall be for any resulting loss or injury
a rise from the displacement of indigenous peoples from lands and territories. It also
expresses that the compensation shall be full. That means it should not be less than what
those peoples acquired from that land and territory and in addition to that it should also
include the future loss which arises from such displacement.

The UNDRIP has a similar provision on redress, restitution and compensation in Article
28(1) states that:
1) Indigenous peoples have the right to redress, by means that can include restitution or,
when this is not possible, just, fair and equitable compensation, for the lands, territories
and resources which they have traditionally owned or otherwise occupied or used, and
which have been confiscated, taken, occupied, used or damaged without their free, prior
and informed consent.
2) Unless otherwise feely agreed upon by the peoples concerned, compensation shall take
the form of lands, territories and resources equal in quality, size and legal status or of
monetary compensation or other appropriate redress.101 Article 28 (2) of UNDRIP
expresses that not mere restitution rather the restitution or compensation shall be in the
form of lands territories and resources.

I think this is because of the spiritual relationship the indigenous peoples have with their
lands and territories. The life will not be comfortable for them without such lands and
territories both physically and psychologically. That is why such preference is selected first
without passing to other options available. Endorois case (Endorois Welfare Councilv.
Kenya).102 The Endorois people are indigenous people in Kenya. The claims related to the

101
ILOConvention169,Supranote129.Article16
102
IndigenousandTribalpeoplesRightsinPractice,supranote118,p.98

Page 27 of 34
establishment of a game reserve on traditional indigenous lands. The Endorois, the pastoralist
community, were evicted from their traditional land during the 1970s and 1980s.

Private concessions were also granted to a private company for ruby mining. Applicants
claimed interalia a breach of property rights (Article14), the right to natural resources
(Article21) and cultural rights (17). In a land mark decision of May 2009, the ACHPR found
that Kenya had violated the Endorois’ rights to property overland, natural resources and
development (Article14,21,22), and to freely practice their religion and enjoy their cultural
identity (Article8 and 17). Such rights–in the ACHPR’s words ‘got other heart of indigenous
rights’. This decision aligns the African Charter with the HRC’s case law on Article 27
ICCPR by reading Article 17 as affording protection to ethno-cultural minority groups and
entailing a duty to take ‘positive steps’ to achieve this objective.

At the same time, based on the community’s ancestral patterns of land use and customs, the
ACHR recognized the land surrounding Lake Bagoria as the traditional land of the Endorois
people. It held that, while a trust land system was in place in order to benefit all of the
residents within the relevant jurisdiction and no legislative framework existed on the rights of
indigenous pastoralist and hunter gatherer communities, Kenya had failed to protect the land
in question as ‘property’ of the Endorois within the meaning of article 14 of African Charter:
The first step in the protection of traditional African communities is the acknowledgement
that the rights, interests and benefits of such communities in their traditional lands constitute
“property” under the Charter and that special measures may have to be taken to secure such
“property rights”.103

3.5.3. Right of consultation and benefits

The recognition of indigenous peoples’ rights of the consultation and benefits is in extricable
tied to the rights to lands and territories, although the Ethiopia constitution guarantee tribal
peoples the right to full consultation and to express their views in planning and
implementations of environment policy and projects that affect them directly; in practice
consultation is rarely carried out fully and appropriate. 104 Therefore, convention No.169
establishes as a basic principle that indigenous peoples have the right to natural resources

103
UNDRIP; Supra note 130, Article 28.
104
Ibid

Page 28 of 34
pertaining to their lands and to participate in the use, management and conservation of these
resources.106

Article 15 (1) of ILO 169 stipulates that: The rights of the peoples concerned to the natural
resources pertaining to their lands shall be specially safeguarded. These rights include the
right of these peoples to participate in the use, management and conservation of these
resources.105 However, there are many cases in which the states alone own mineral and other
resources.106 Article 15 (2) recognizes this situation while also stipulating that indigenous
peoples have rights regarding consultation, participation in the benefits of resource
exploitation as well as compensation for damages resulting from this exploitation. This
Article should be read in conjunction with Article 6 and 7 (3) of the convention which,
specify that the social, spiritual, cultural and environmental impact of development activities
on indigenous peoples shall be accessed in cooperation with them, and that the results of such
studies shall be considered as a fundamental criteria for the implementation of these
activities. This provision of ILO convention No.169 is re-affirmed in the UNDRIP which
stipulates that:

Article 32
1) Indigenous peoples have the right to determine and develop priorities and strategies for
the development or use of their lands or territories and other resources.
2) States shall consult and cooperate in good faith with the indigenous peoples concerned
though their own representative institutions in order to obtain their free and informed
consent prior to the any project affecting their lands and territories and other resources,
particularly in connection with the development, utilization or exploitation of mineral,
water or other resources.

States shall provide effective mechanisms for just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate adverse environmental, economic, social,
cultural or spiritual impact. This Article clearly shows that indigenous peoples have the right
to determine the use and management of their resources in addition to the right to lands and
territories. Since they have the right to resources, any attempt to use that resources without
the consent these peoples is not tolerable for it violates the rights of such peoples.

105
Ibid
106
InterAmerican Commission on Human Rights, Indigenous and Tribal Peoples’ Rights over Their Ancestral
Lands and Natural Resources, 2010, p.13.

Page 29 of 34
Thus, state has obligation to consult these peoples and they have right to be consulted. If they
give their consent toward the use of such resources by the government, still they have the
right to get benefit of such resources and the right to be compensated. The state has
obligation to realize their right to get benefit of such resources and the right to be
compensated. The compensation should not be in vain; rather it has to be fair and equitable
compensation if restitution is not possible or if the peoples concerned wish to take
compensation than restitution. For example; Thailand: Peoples Constitution. Part XII of the
2007 constitution of Thailand is dedicated to “community” At section 66; it establishes that
“Persons assembling as to be a community, local community, or traditional local community
shall have the right to participate in the management, maintenance and exploitation of natural
resources, the environment and biological diversity in a balanced and sustainable fashion”
However, as to the practical implication of this provision, the former UN Special Rapporteur
on indigenous issues, has warned that “despite the recognition of customary natural resources
Management by local communities, legal instruments adopted in recent years, such as the
land Act, the National Parks Act, have failed to recognize indigenous and tribal peoples’
traditional land tenure and use patterns. The enforcement these laws have resulted in the
expulsion of many indigenous and tribal peoples, considered to be illegal encroachers on their
ancestral lands, as well as in a number of unresolved disputes between state lands (including
National Parks, watershed areas and forestry preservation areas and community lands).107

3.6. The right to Development

The right to development is in itself an inalienable human right. 108The World Bank estimates
that indigenous people constitute approximately 5% of the world’s population, but 15% 0f
those living in poverty.109 However, indigenous peoples have often ended up being the victim
of development instead of its beneficiaries. While the construction of infrastructure, oil
exploitation, logging and mining has contributed to economic growth for certain sectors of
society, the consequences for indigenous peoples have often been devastating. 110 Article 7 of
ILO Convention No.169 stipulates that:
107
Ibid
108
ILO Convention 169, supra note 129, Article 15
109
UNDRIP; Supra note 130, Article 32.
110
The peoples constitution://www.asian/ii.org/th/legis/const/2007.
Page 30 of 34
1) Peoples concerned shall have the right to decide their own priorities for the process of
development as it affects their lives, beliefs, institutions and spiritual well-being and the
lands they occupy or otherwise use, to exercise control, to the extent possible, over their
own economic, social and cultural development. In addition they shall participate in the
formulation, implementation and evaluation of plans and programs for nation a land
regional development which may affect them directly.
2) The improvement of the conditions of life and work and levels of health and education of
the peoples concerned, with their participation and co-operation shall be a matter of
priority in plans for the overall economic development the areas they inhabit. Special
projects for development of the areas in question shall also be so designed as to promote
such improvement.111

Article 23 of the UNDRIP Indigenous peoples have the right to determine and develop
priorities and strategies for exercising their right to development. In particular, indigenous
peoples have the right to be actively involved in developing and determining health, housing
and other economic and other programmes affecting them and, as far as possible, to
administer such progammes through their own institutions.112 These Articles of the two
conventions express the right to development of indigenous peoples. It also reflect that, in
every development activity which affects them, they have to actively participate and
government has to give priority to the improvement of indigenous peoples’ conditions of life.
As far as development is concerned, the issues which need to be given priority include:
conditions of health, housing, food, education and etc.

3.7. The right to Culture

The right to culture is fundamental for indigenous peoples, as their cultures are distinct and
threatened by the continuous pressure of assimilation by the dominant society. 114 UNESCO
has defined the concept of culture as a distinctive traits including, the total spiritual, material,
intellectual, and emotional traits that characterize a society or social group, and that include,
in Addition to arts and literature, their ways of life, the manner in which they live together,
their value systems, and their traditions and belief.113

111
World Bank: Implementation of Operational Directive 4.20 on Indigenous peoples,2003

112
Ibid
113
ILO Convention 169. Supranote129,Article 7.
Page 31 of 34
Article 27 of ICCPR
In those states in which ethnic, religious, or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in conformity with the other members of their
group to, enjoys their own culture, to profess and practice their own religion, or to use their
own language. Indigenous peoples have the right to maintain and strengthen their distinct
political, legal, economic, social and cultural institutions.114 State has obligation to promote
their culture and traditions.115The protection of the cultural right of indigenous peoples
includes: helping them to transmit and use their own histories, cultures, languages, oral
traditions, literatures, and writing systems.116

3.8. The right to Non-discrimination.

The first “layer of protection” for indigenous peoples is that of individual human rights.
Individuals belonging to indigenous population enjoy the same human rights and
fundamental freedoms as other individuals. 117 Therefore, many international instruments on
the protection of human rights apply to them. Among the most important human rights, the
right to equality and non-discrimination, interalia, on the basis of race, religion, language, or
ethnic origin, which aim to guarantee the same treatment to all individuals under the
jurisdiction of the state so the right to equality and non-discrimination is supplemented by
norms safeguarding the diversity of individuals belonging to particular groups, and
Particularity relevant in this regard is adhoc instruments, and adhoc provisions embodied in
more general instruments, pertaining to minorities.118

The most important example of the latter “distinctive” provisions is article 27 0f ICCPR.
Indigenous peoples may thus benefit from the international legal framework on the protection
of minorities.119 Article 2 of UNDRIP also talks about the right to non-discrimination. It states
that:
Indigenous peoples and individuals are free and equal to all other peoples and individuals

114
UNDRIP; supranote130,Article23.
115
LidiyaKnuth,The Right to Adequate Food and Indigenous peoples, Food and Agricultural Organization of the
UN,Rome,2009.
116
Ibid

117
International Convention on Civil and Political Rights,UN,1966
118
UNDRIP,supranote130,article5.
119
RonHampton and Marie Tromps, Culture Identity and Indigenous Australian Peoples, Oxford, 2006, p.5
Page 32 of 34
and have the right to be free from any kind of discrimination, in the exercise of their rights, in
particular that based on their indigenous origin and identity. 120 Article 3 and 4 of ILO
Conventional so have the same idea with Article 2 of the UNDRIP in that it clarifies the
application of fundamental human rights and freedoms applicability for all human being, for
both male and female. In this regard indigenous peoples are also human beings. So, there
should not be discrimination based on any ground.121

3.9. The right to education

Indigenous peoples have also the right to education. If certain peoples did not educate, their
history, language, culture and identity will be disappeared. This results the loss of beautiful
culture of indigenous peoples. To avoid this, education is the most important option for
indigenous peoples. Thus, indigenous peoples’ children have to learn. The convention on the
right of child, states in article 29 that the education of the child shall be directed to “the
development of the child’s personality, talent and mental and physical abilities to their fullest
potential” and the preparation of the child for responsible life in a free society, in the spirit of
understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic,
national, and religious groups and persons of indigenous origin.”122

ILO Convention No.169 also talks about the right of indigenous peoples. Article 29 The
imparting of general knowledge and skill that will help children belonging to the people
concerned to participate fully and on an equal footing in their own community and in the
national community shall be an aim of education for these peoples. Article 14 and 21 of the
UNDRIP also talks about the right to education of indigenous children. It expresses that
indigenous children have the right to equal access to state education system with out any
discrimination. Thus, pursuant to these articles, indigenous children have the right to
education.123

120
UNDRIP,Supranote130,Article13.
121
Ibid

122
Ibid, p.571
123
UNDRIP, supra note 130, Article 2

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