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. NURYE 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
Declaration

I Taban Tut Rom, hereby declare that the title ‘the protection of land and territory right of
indigenous peoples of Ethiopia under FRDE Constitution’ is my own original work which
has not been offered in any university and the source used have been appropriately
acknowledged and I confidentially declare that this research has not been submitted to any
other institutions anywhere for the award of any academic degree or diploma.

Acknowledgement

First and foremost I would like to thanks the God Almighty who there for me every time
and whose blessing and care are made me to finished that years of study by putting the
ignorance and confidence on my hearts.

Secondly I would also like to express my gratitude thanks to my Advisor Mr. Nurye Beyan
for his patience advice and invaluable suggestion without his supervision this papers would
not have been possible and without constrictive comments the paper would not have been
done, his friendly approach make the work easier for me so my gratitude thanks goes to
him.

Thirdly my heartfelt thanks are also extern to my mother (Nyalitka Kuek Pajok) for her
lovely and ending supports on my success and I would extern my gratitude thanks to my
brothers and sisters for their financial supports and word of encouragements on my study all
years around and also to my siblings for their cooperation and provision necessary material
relevant to complete this research.

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Abstract

The research strongly emphasizes on the right of indigenous peoples on their land and
territories .Accordingly the aim of this research is to assess the protection of land and
territory right of indigenous peoples of Ethiopia, according to international instrument,
FDRE constitution, proclamation, regulation. In doing so, the paper identified the problems
concerning the right of indigenous peoples to free priority and informed consent which
related within adequacy source of information that are on TV, radio, internet access,
newspaper ,periodicals ,fiction and lack of awareness on the rules and regulation of the
institution, lack of awareness on the authorized method of seeking information and making
compliant and finally unsuitable condition to be visited by legal counsel, family, religious
father overcrowding and absence of construction for religion. Hence the researcher
discovered that the right of indigenous peoples to have access to information in especially
in Gambella administration is not adequately protected.

Based on the finding the researcher proposed the amendment of existing regulation for the
protection of indigenous peoples and their land right, the Gambella administration should
give awareness to indigenous peoples on their land.

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ACRONMS

ACHPR……………………African Charter on Human and Peoples Right

CEDAW………....................Convention on Elimination All Form of Racial Discrimination
Against women
CRC………………………..Convention on the Right of the Child
DOP………………………...Drafting on the Operation Policy
ECOSOC……………………United Nation on Economic and Social Council
EMRIP……………………...Expert Mechanism on the Right of Indigenous Peoples
FDRE………………………Federal Democratic Republic of Ethiopia
HRC………………………..Human Right Council
ICERD…………………......International Convention on Elimination All Form of Racial
Discrimination
ICESCR…………………International Convention on Economic, Social and Cultural Right
ICCPR………………………International Convention on Civil and Political Right
ILO…………………………International Labour Organization
NGO……………………….Non-Governmental Organization
PFII…………………………Permanent Forum on Indigenous Issues
UDHR……………………...Universal Declaration of Human Rights
UN…………………………United Nation
UNDRIP…………………..United Nation Declaration on the Right of Indigenous Peoples
UNESCO……………….....United Nation Educational Scientific and Cultural Organization
UNWGIP………………….United Nation Working Group of Indigenous Peoples

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TABLE OF CONTENTS Page

i. Declaration........................................................................................................

Ii. Acknowledgment..............................................................................................

Iii Abstract……………………………………………………………………….

Iv 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……………………………

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 2.2.1.3. UN Definition of Indigenous People
……………………………………
2.2.1.4. World Bank Definition of Indigenous
People…………………………...
2.2.1.5. Africa Charter on Human Peoples Rights Approach
……………………
2.3. Some Examples of the National Definitions of Indigenous peoples…………….
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…………………………………….. …………………….

Chapter Four

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4. THE NEED FOR THE LAND RIGHTS PROTECTION AND IT'S RECOGNITION
UNDER FDRE CONSTITUTION…………………………………………………………..
4.1. Introduction……………………………………………………………………….…
4.2. The Protection of the Rights of Indigenous Peoples’ Under FDRE Constitution…
4.2.1. The Provisions Of FDRE Constitution …………………………………………
4.3. Regional Constitution on Indigenous Peoples……………………………….
4.4. The Applicability of International Human Right Treaties In Ethiopia………………

4.5. The Existing Gaps In FDRE Constitution Concerning Indigenous Peoples And Their
Rights………………………………………………………………………………………...
4.6. The Possible Solutions for The Existing Gaps In FDRE Constitution………………….
4.7. Conclusion……………………………………………………….……………………..
4.8. Recommendation……………………………………………………….………………

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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
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.

Page 8 of 52
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 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 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

6
Ibid
7
Ibid
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 2
13
UN, State of the World’s Indigenous Peoples, New York, Volume1, 2009. (here in after ‘State of the
world’s Indigenous peoples’)

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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 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 millions 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 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

14
Www.Culturalsurvival.Org/Observation on the state of indigenous, supra note p.3-4 [last accessed, Jan,
20/2020]
15
ibid
16
Ibid
17
Ibid
18
http://www.iwgia.org/region/africa/ethiopia. [Last accessed, Jan 20/2020]
19
ibid

Page 10 of 52
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
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,

Page 11 of 52
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.

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.

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1.9. Limitation of the Study

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.

Page 13 of 52
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

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;

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

Page 14 of 52
 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 15 of 52
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 16 of 52
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 /
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

Page 17 of 52
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
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
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 18 of 52
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;
“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
40
Ibid
41
Ibid, p .31

Page 19 of 52
the 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,

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

Page 20 of 52
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
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
48
Ibid
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

Page 21 of 52
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
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

CHAPTER THREE

3. RIGHTS OF INDIGENOUS PEOPLES’ UNDER INTERNATIONAL HUMAN RIGHTS

LAW

55
Ibid
56
Indigenous peoples of Africa, supra note 50
57
Indigenous peoples of Africa, supra note 50

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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

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
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 23 of 52
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
2001, UN Special Rapporteur on Rights of Indigenous Peoples land and territory

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 24 of 52
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 25 of 52
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

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.

Page 26 of 52
NO.107, became the first Convention within the UN fame work to deal exclusively with
indigenous peoples.82

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

82
Mazel, Supra note 73, p.153
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.

Page 27 of 52
peoples at international law and remains one of the most significant conventions in the
human right system for indigenous peoples, was adopted.88

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
88
Ibid
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

Page 28 of 52
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 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.

94
Ibid, p.98
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 29 of 52
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 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

98
Ibid
99
ILO Convention 169,Supranote 129,

Page 30 of 52
 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. 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.

100
UNDRIP;Supranote 130,Article26

101
ILOConvention169,Supranote129.Article16

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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
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

102
IndigenousandTribalpeoplesRightsinPractice,supranote118,p.98

103
UNDRIP; Supra note 130, Article 28.

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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 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,
104
Ibid
105
Ibid
106
InterAmerican Commission on Human Rights, Indigenous and Tribal Peoples’ Rights over Their Ancestral
Lands and Natural Resources, 2010, p.13.

Page 33 of 52
 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.

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

107
Ibid

Page 34 of 52
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:
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
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.
111
World Bank: Implementation of Operational Directive 4.20 on Indigenous peoples,2003

112
Ibid

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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

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,

113
ILO Convention 169. Supranote129,Article 7.
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

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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
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

118
UNDRIP,supranote130,article5.
119
RonHampton and Marie Tromps, Culture Identity and Indigenous Australian Peoples, Oxford, 2006, p.5
120
UNDRIP,Supranote130,Article13.
121
Ibid

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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

CHAPTER FOUR

4. THE NEED FOR THE LAND RIGHT PROTECTION AND IT RECOGNITION

UNDER FDRE CONSTITUTION
4.1. Introduction
As we all know land is the one that everyone in the world survives for, but without land
there will not be any survival on the earth we live that is why the government of the
Ethiopia makes the land as the national property owned by no one.
Internationally, Article 26 of UNDRIP is clearly provided that;

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

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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.

So the land become the one which are caused conflict among small sub-clan and lead to the
displacement of millions of peoples in different parts of the world especially for economic
development and industrials expansion, hence to avoid such crisis we need to protect a land
and resource on which the indigenous peoples relies on it for the millions of years as their
only income for survival. Their right should be respected, promoted, recognizes, and fulfill
by the government of the state, they also have right to own, use and control their traditional
land for their future generation.124

4.2. The Protection of the rights of indigenous peoples’ under FDRE constitution
In FDRE constitution, there is no any conceptual and actual terminology and reference of
people as ‘indigenous’ and ‘non-indigenous’. But there as why Ethiopian constitution did
not recognize the concept of indigenous people is not clear for it is either to claim that ‘all
Ethiopians are indigenous peoples’, or to claim that ‘there is no indigenous people in
Ethiopia’, and to claim that ‘none of classifying people as indigenous and non-indigenous in
Ethiopia’ is vague idea in Ethiopia. Even though indigenous peoples are not recognized in
Ethiopia, when we look international characterization of indigenous people, many Ethiopian

124
UNDRIP; Supra note 108, Article, 26.

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people fulfill the standard to classify indigenous people. Therefore, existence of indigenous
peoples in Ethiopia has no doubt.

4.2.1. The provisions of FDRE constitution

There is a little probability in 1995 FDRE Constitution to protect the rights of indigenous
peoples. We can see this a little possibility under some of the provisions of the FDRE
Constitution. These provisions of the constitution incidentally protect the rights of
indigenous peoples in Ethiopia. Let me try to discuss some of these provisions. The
constitution states that Ethiopian pastoralists have the right to free land for grazing and
cultivation as well as the right not to be displaced from their own lands.125

Here the constitution is stipulating the right of pastoralists. But according to international
standard, pastoralists in Ethiopia such as Borena, Karayu and Somali are some among
indigenous peoples of Ethiopia.126 Thus, their right is incidentally protected as far as the
right to land for grazing and cultivation is concerned. But, practically their land is being
given to domestic and foreign investors. Regarding the right to self-determination, the
constitution put that every nation, nationality, and people in Ethiopia has unconditional
right to self-determination including the right to secession.127

4.3. Regional constitution on indigenous peoples

As I have stated earlier, FDRE Constitution did not recognize indigenous peoples and rights
of indigenous peoples. But, in Benishangul-Gumuz Regional constitution, there is
classification of peoples as indigenous and non-indigenous. Benishangul-gumuz Regional
State legally and politically categorizes the residents of their region as indigenous and non-
indigenous people.

125
FDRE Constitution, Article 40 (5).
126
World Bank, Indigenous Peoples, Poverty and Development: Indigenous Peoples and Development Goals;
A Global Snap shot, 2010, p.5.
127
FDRE Constitution, supra note 132, Article 39 (1)

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The constitution states that the indigenous people of the region are Berta, Gumuz, Shinasha,
Mao and Komo: while the rest group out of those indigenous peoples of the region are
referred as non indigenous peoples.128 In Oromia Regional state constitution, those group of
people who are not considered as people of the region are referred as ‘others’. But on the
idea of the above both constitutions, am of the opinion that these regional constitutions
could not enable us to say that those peoples labeled as ‘non-indigenous’ and ‘others’
respectively under both constitutions are not indigenous peoples at national level. Because,
these constitutions are using these terms to differentiate the original residents of the region
from newly settled residents of these regions for different purposes. Thus, it does not mean
that they are non-indigenous.129

4.4. The applicability of international human right treaties in Ethiopia

128
Benishangul Gumuz Regional state Revised Constitution Approval Proclamation No.31/2002, Article 2.
129
Oromia Regional State, Revised Constitution Approval Proclamation No.44/1994, on the preamble and
Article 8

Page 41 of 52
FDRE Constitution provides that all international agreements ratified by Ethiopia are an
integral part of the law of the land.130 This implies that agreements ratified by Ethiopia are
laws of Ethiopia. Thus, they will be applied like any other laws of Ethiopia. However,
Federal Negarit Gazette Establishment Proclamation No.3/1995 provides that all laws of the
Federal Government shall be published in the Federal Negarit Gazette. Further, states that
Federal or Regional Legislative, Executive and Judicial organ as well as any natural or
juridical person shall take judicial notice of laws published in Negarit Gazette. 131 So the
only requirement is publication and publication is meant to the ease application of the law.
Therefore, International Human Rights Treaties can be applied in Ethiopia.

Ethiopia has ratified many core human rights treaties which play potential role to protects
the right of indigenous peoples. Among these treaties, I try to list some of them, which can
protect rights of indigenous peoples. These include:
 International Covenant on Civil and Political Rights
 International Convention on the Elimination of All Forms of Racial Discrimination
 International Covenant on Economic, Social, and Cultural Rights
 Convention on the Elimination of All Forms of Discrimination against Women
 Convention on the Right of Child
 African Charter on Human and Peoples’ Rights.132

These ratified human rights treaties ratified by Ethiopia, if applied; they can protect general
human rights. If general human right is protected, the rights of indigenous peoples can be
protected, because the right of indigenous people is the subset of general human rights. The
only reason is that indigenous peoples are not capable of enjoying general human right.
That is why an advocate of the rights of indigenous peoples claims priority to be given for
indigenous peoples like women and children, to enable them enjoy human rights like any
other person.

130
A proclamation to pronounce the coming in to effects of the constitution of the Federal Democratic
Republic of Ethiopia’, No.1/1995, Article 9 (4) (here in after ‘FDRE Constitution’)
131
Federal Negarit Gazette Establishment Proclamation No.3/1995, Article 2 (2-3)
132
Girmachew Alemuetal, Ethiopian Human Rights Hand book, Domestic implication of International Human
Rights Obligations in Ethiopia, 2013, p.28.

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Self-determination or popular participation is deciding their matter by themselves. If
practically applied, this can protect the right of indigenous people in Ethiopia. But the
problem is that indigenous peoples cannot be benefited equally with other people of the
country from this constitution unless priority is not given for them so as to enable them
participate actively. Regarding the right to culture, the constitution provides that every
nation, nationality in Ethiopia has the right to speak, to right and develop its own language;
to express, to develop and to promote its culture; and to preserve its history. 133 This canal
protect indigenous peoples as can be expressed as a collective right, because culture is most
of the time exercised as a group right. For example; a person cannot lonely speak his or her
language. There must be group. The right of culture is very important right of indigenous
peoples for it helps them to identify themselves.

The constitutional so stipulates that people of Ethiopia as a whole and nation, nationality
and people in Ethiopia have the right to improved living standards and sustainable
development.134 This provisional so did not recognize collective right of indigenous peoples,
because there is no reference of indigenous peoples. The constitutional so expresses the
right of the people to full consultation and to the expression of views in the planning and
implementation of Environmental policies and projects that affect them directly, this
provision guarantees the indigenous peoples. This obliges the state to consult with peoples
before carrying out policies and projects that affect the people. This can include carrying
out environmental impact assessment before any development activity has been carried
out.135

4.5. The existing gaps in FDRE constitution concerning indigenous peoples and
their rights
A very big gap in FDRE Constitution is the non-recognition of indigenous peoples and their
rights. Because of the non-recognition of indigenous peoples and their right, many problems
have been occurred in Ethiopia. For example, displacement of indigenous agriculturalist
from their cultivation land, taking of pastoralists’ grazing lands for investors, payment of
unfair compensation for the displaced people and the like.

133
Ibid, article 39 (2)
134
Ibid, Article 43 (1)

135
Ibid, Article 92 (3)

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All these problems are the practical problems which Ethiopia is being faced today. The
major source of all these problems is the absence of prior consultation of the indigenous
peoples. These all are the result of the non-recognition of indigenous peoples and the rights
of indigenous peoples’. FDRE Constitution states that the right to ownership of rural and
urban land, as well as of all natural resources is exclusively vested in the state and in the
peoples of Ethiopia.136This implies that the people are not the sole owner of land. Rather the
state and people own the land commonly. This may not have problem with peoples whose
livelihoods are not dependent on land. But, as I have discussed earlier, indigenous peoples
have spiritual relationship with their lands. This implies that life becomes impossible for
them if they separate from their land due to the fact that they have historical relationship
with their ancestral lands.

This position of FDRE Constitution has serious harms on indigenous peoples. These harms
arise from the division of the right to lands of indigenous peoples’ between the state and
indigenous peoples. The right which they own before has been diminished. When the right
they own on the land diminishes, the benefit they get from the land also diminishes. This
results the deterioration of the life of indigenous peoples. This susceptible them for poverty,
famine, diseases and etc. finally, their right to life will be violated. Because, human rights
are interdependent and thus, if one is not protected the other will be violated as a result of
the first. This is due to the fact that loss of their right to lands goes to loss of their right to
life.

Due to the above reason, the FDRE Constitution’s approach of land ownership may lead to
the violation of the rights of indigenous peoples to land. Regarding the natural resources,
the constitution provides that the right to all natural resources exclusively vested in the state
and peoples of Ethiopia.137 Under this provision, the right of indigenous peoples to natural
resource is incidentally protected to some extent, but it is not enough. Here what we have to
know is that resource is highly related with lands.

136
bid, Article 40 (3)

137
Ibid

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Thus, indigenous peoples’ right to land includes resource found on that land. They have
right to use resource found on their land. But, when we see the provision of this constitution
it did not say anything about the participation of indigenous people in the management and
exploitation of natural resources. As I have discussed in chapter three, the Thailand people
constitution establishes that local community [indigenous people in our case] 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. 138This is
very important for indigenous peoples. For example, if we take ‘Majangir’ indigenous
peoples in Ethiopia, they live in forest and it is no doubt that forest provides them their
basic needs. Assume that forest in which they live is given for a certain investor. Now,
where they will be? Therefore, enabling indigenous peoples to participate, to manage and
exploitation of natural resources is of a paramount importance.

4.5.1. The possible solutions for the existing gaps in FDRE constitution
The first solution is that Ethiopia has to reform its constitution concerning legal recognition
of indigenous peoples and their land rights protection. In recent decades, many countries
have reformed their constitutional and legal systems in response to calls from indigenous
movements for legal recognition of their right to the protection and control of their lands,
territories and natural resources (as well as with respect to their languages, cultures and
identities; their laws and institutions; their forms of government and more), so the FDRE
Constitution has given protection for disadvantaged groups such as women, children and
persons with disabilities.139

Indigenous peoples are also disadvantaged groups. For example, the right to education is
protected for everybody in Ethiopia. In Ethiopia there are more than 80 nation, nationality
and peoples. But these peoples may not be equally benefited from the right to education and
this may be due to different problem. To tackle this problem Ethiopia has to reform its
constitution. Thus, FDRE Constitution has to give recognition for indigenous peoples and
the rights of indigenous peoples.

138
Supranote 88,p-45.

139
http://www.un.org/esa/socdev/unfii/documents/6-session-factsheet1.pdf.[last accessed, October 11/2020]

Page 45 of 52
The next solution is that FDRE Constitution has to recognize indigenous right to lands,
territories and resources. Not only those rights but also those mentioned in ILO and
UNDRIP. Finally, what I want to add is the definition of the term ‘People’ under FDRE
constitution has to be flexible to allow indigenous peoples to be included so as to make
them beneficial of a protection of the FDRE constitution. By doing so, Ethiopia can protect
the right of indigenous peoples in its territory.

4.6. Conclusion
The term ‘Indigenous People’ has no fixed definition either at international level or at
national level. Different international organizations and different countries define it in their
own context. But the absence of universal and fixed definition cannot prevent indigenous
peoples from enjoying their right under laws which protects them. Rather than defining the
term, characterization of the term is being used by many scholars, countries and
organizations. I did not attempt to define the term indigenous people in this paper rather
appreciate the characterization of the term.

Indigenous peoples across the world are facing discrimination, poverty, famine, loss of their
lands and resources, loss their culture, identity and language and etc. According to the
statement of the UN Secretary General, “one indigenous language dies every two weeks,
indigenous cultures are threatened with extinction”.140The right of indigenous peoples is
claimed as a collective right. The rights of indigenous peoples include: the right to land,
resource, culture, self-determination, education and the like. The claim of the right of
indigenous peoples seems repentance since they are entitled to fundamental human rights.
But, because of the past discrimination or the continued discrimination on them, indigenous
peoples couldn’t enjoy fundamental human rights. Thus, they need the recognition of their
collective rights.

FDRE Constitution did not recognize indigenous peoples and their rights. Ethiopia did not
ratify ILO Convention No.169 (Convention on Tribal and indigenous peoples). 141This
convention is very important for the protection of the right of indigenous peoples. Ethiopia
also did not appeared in UN during the vote of the UNDRIP Due to this indigenous peoples

140
Supranote10, p.8

141
Supra note 22.

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of Ethiopia have been forgotten and they are facing discrimination, displacement from their
lands and etc. Even though Ethiopia did not ratify this convention and this declaration, there
is possibility to protect the rights of indigenous peoples in FDRE Constitution. Generally,
FDRE neither recognize indigenous peoples nor their rights.

4.7. Recommendation

The rights of indigenous peoples protected in ILO Convention No.169 and UNDRIP are
minimum rights that deserve to indigenous peoples.142 States are expected to protect rights
of indigenous peoples in their domestic law than the protection given for indigenous
peoples by under international law. When I come to the case of Ethiopia, even the term by
itself did not recognize in FDRE Constitution.

Firstly, Ethiopia shall reform its constitution so as to recognize indigenous peoples.

Because, the current constitution could not protect the rights of indigenous peoples by only
providing rights to the Nation, Nationality and Peoples of Ethiopia as whole. This is due to
the fact that Nation, Nationality, and Peoples of Ethiopia cannot equally enjoy fundamental
human rights incorporated in FDRE Constitution, because of historical injustice done to the
indigenous people.

Secondly, Ethiopia should have to recognize the rights of indigenous peoples clearly in her
constitution. This enables indigenous peoples to enjoy their right equally with all peoples of
the country. Ethiopia has to recognize the collective rights of indigenous peoples in her
constitution.

Thirdly, Ethiopia shall ratify ILO Convention No.169.This is the only treaty which is now
protecting the right of indigenous peoples all over the world. Even though it did not
exhaustively contain the rights of indigenous peoples’, it is necessary to protect them.
Fourthly, Ethiopia shall vote in favor of UNDRIP. The UNDRIP is the landmark
declaration in the history of indigenous peoples. It has incorporated many rights of
indigenous peoples’. Thus, Ethiopia shall vote in favor of this declaration in order to protect
the rights of indigenous peoples’ in Ethiopia.

142
Ibid

Page 47 of 52
Fifthly, Ethiopia should wake up to think about indigenous peoples, to protect their rights,
and to empower them. She has to give priority for their issues and help them to improve
their life.

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Page 50 of 52
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