Indigenous Peoples and International Law: 1 Historical Underpinnings

Chapter 1
Indigenous Peoples and International Law
§1 Historical Underpinnings
European exploration and expansion to Africa, Asia, and the Americas during
the Age of Discovery catalyzed immeasurable and enduring change world-
wide. Anghie argues that colonialism – the encounter between the Spanish
and the Indians – framed the creation and development of international law.1
Moreover, colonialism prodigiously altered the lives and destinies of the in-
habitants of “discovered” lands. The Doctrine of Discovery, which justified
colonialism – the dominion and sovereignty by Christian monarchs over non-
Christian lands – is arguably at the very core of the human rights violations
that indigenous peoples continue to suffer to this very day.
In 1452, Pope Nicolas V issued Dum Diversas, a papal bull that empowered
King Alfonso of Portugal to “invade, search out, capture, vanquish, and subdue
all Saracens and pagans whatsoever, and other enemies of Christ, whereso-
ever placed, and the kingdoms, dukedoms, principalities, dominions, posses-
sions, and all movable and immovable goods whatsoever held and possessed
by them and to reduce their persons to perpetual slavery …”2 Additionally, the
bull granted him the right to convert these properties to his use and profit.
Romanus Pontifex, which Pope Nicolas v issued in 1455, reiterated the faculty
granted by Dum Diversas, and bestowed the “right of conquest”, a perpetual
right that belonged to King Alfonso and his successors. Frichner explains
that, Dum Diversas and Romanus Pontifex each served as a “papal license for
the forced taking of all indigenous lands and territories … and to engage in
unlimited resource extraction for the monarch’s ‘use and profit’ ”.3
Pope Alexander VI’s papal bulls Inter Caetera and Eximiae Devotionis of
May 1493, and Dudum Siquidem of September of the same year, delineated the
1 Antony Anghie, Imperialism, Sovereignty and the Making of International

Law 15 (digital ed. 2008) (hereinafter, Anghie, The Making of International Law), http://ebooks.
cambridge.org/ebook.jsf?bid=CBO9780511614262.
2 un ecosoc, Permanent Forum on Indigenous Issues, 9th Session, Impact on Indigenous
Peoples of the International Legal Construct known as the Doctrine of Discovery, which
has served as the Foundation of the Violation of their Human Rights, A Preliminary Study
submitted by Tonya Gonnella Frichner, Special Rapporteur (hereinafter, Frichner, Doctrine of
Discovery) 11, UN Doc. E./C.19/2010/13 (3 February 2010).
3 Ibid.
Indigenous Peoples and International Law 7
globe to resolve Spain and Portugal’s conflict, which resulted from the discov-
ery of the New World by Christopher Columbus.4 Issued by an Aragonese pope
who had ingratiated himself to Spanish sovereigns Ferdinand and Isabella, the
grants bestowed by these papal bulls5 were markedly to Spain’s advantage, and
to which Portugal took exception. A year later, Spain and Portugal executed the
Treaty of Tordesillas, which modified the Pope’s demarcation lines without his
participation.6 In November 1514, Pope Leo x, Alexander’s successor who was
more sympathetic to Portuguese interests, issued Praecelsae Devotionis, which
extended the demarcations, and granted Portugal’s claims to all lands in the
Pacific.7 The Treaty of Zaragoza followed in April 1529, whereby Spain ceded its
interests in the Moluccas 8 or the “Spice Islands” in exchange for compensation
from Portugal. Through these treaties, the two great Powers of the time divided
the world between them. Sanctioned by both papal fiat and their bilateral con-
ventions, Spain and Portugal spearheaded expeditions that sought to Chris-
tianize native peoples, whether as the ultimate driver or a subterfuge for gains
more temporal rather than spiritual. In the process, these two superpowers
colonized vast territories across continents. Other European states followed
4 H. Vander Linden, Alexander VI. and the Demarcation of the Maritime and Colonial Domains of
Spain and Portugal, 1493–1494, (hereinafter, Vander Linden, 1916) 22:1 Am. Hist. Rev. 1, 9 (1916).
Muldoon argues that, “[a]lthough Inter caetera is commonly described as the bull which
divided up the world, this popular view is in error. Rather, it is a statement on the nature of
Christian-infidel relations and on the responsibility of the pope to protect the infidels and to
the convert them to Christianity.” See James Muldoon, Papal Responsibility for the Infidel: An-
other Look at Alexander VI’s “Inter Caetera”, 64 Catholic Hist. Rev. 4, 168, 169 (April 1978).
5 Vander Linden explains on 3:
The first bull Inter caetera, granting to the Spanish monarchs the sovereignty over the
lands discovered and to be discovered toward the westward, is dated May 3, as is also
the bull Eximiae devotionis, which repeats that portion of the first bull stipulating that
the sovereignty shall be exercised in the same manner as that of the King of Portugal
in his possessions. The second bull Inter caetera reproduces its predecessor almost
completely, except for this stipulation relative to Portuguese sovereignty, in the place
of which appears a provision establishing a line of demarcation in the Atlantic. This
bull of demarcation is dated May 4.
6 Edward Heawood, The World Map Before and After Magellan’s Voyage, 57 Georg. J. 6, 431, 433
(June 1921).
7 Cathal M. Doyle, Indigenous Peoples, Title to Territory, Rights and Re-
sources: The Transformative Role of Free Prior and Informed Consent
(hereinafter, Doyle, fpic) 23 (Routeledge, 2015); Owen J. Lynch, Jr., Spanish Colonial Sover-
eignty Over the Philippine Islands: Legal Origins and Justifications (hereinafter, Lynch, Spanish
Colonial Sovereignty), 6 Soc. Sci. Diliman 2, 79, 83 (December 2010).
8 Antonio Truyol y Serra, The Discovery of the New World and International Law, 3 U. Tol.
L. Rev. 305, 311 (1971).
8 chapter 1
suit; eventually, the United States, once a colony itself, also became a coloniz-
ing power.
Of particular interest in revisiting the colonial past are the deeply ingrained
and protracted consequences to the lives of the indigenous peoples in the ar-
chipelago “discovered” by Ferdinand Magellan for the Spanish sovereigns in
March 1521 en route to the Moluccas. Magellan called his discovery – the final
one for the Portuguese explorer – Islas de San Lazaro, and claimed it for his
patron, the Spanish King, Charles i.9 Although the circumstances of Magellan’s
death in the archipelago are uncertain due to a number of uncorroborated, of-
ten conflicting accounts, it is believed that the voyager perished at the hands of
the Muslim King of Mactan Island, Lapu-Lapu, and his warriors.10 In 1543, Ruy
López de Villalobos rechristened the archipelago Las Islas Filipinas (the Phil-
ippine Islands) after King Philip ii.11 However, Spain began to exercise control
over greater parts of the Philippines only after the adelantado Miguel Lopez
de Legazpi concluded peace treaties with local Chiefs in southern Philippines
through blood compacts,12 and subjugated Manila in 1570.13 The Spanish colo-
nizers called Muslims, Moros, while the non-Islamic indigenous peoples were
disparagingly called indios. The indios were not only described as “… very stu-
pid and vicious, and of the basest spirits”14 but were also compared to monkeys
even as late as 1885.
The Philippines was a Spanish colony for over 300 years, until by virtue of
the Treaty of Paris of 1898, it became an American colony by cession for close
to 50 years. The American colonizers were guided by President William McKin-
ley’s Benevolent Assimilation Proclamation of 21 December 1898. According to
McKinley, the Americans had “come, not as invaders or conquerors, but as
friends, to protect the natives in their homes, their employments, and in their
personal and religious rights.” Nevertheless, the expropriation of indigenous
peoples’ lands, and the disregard of their rights persisted, if not intensified,
9 Lynch, Spanish Colonial Sovereignty 83.

10 See in general, Richard J. Field, Revisiting Magellan’s Voyage to the Philippines, 34 Phil.
Q. of Culture & Soc’y 4, 313 (2006); Kathleen Nadeau, The History of the
Philippines 21– 26, (Greenwood Press, 2008).
11 Edgar C. Knowlton, Jr. The Naming of the Philippines and of the Marquesas Islands, 39
American Speech No. 4, 302, 302 (December 1964).
12 Filomeno V. Aguilar, Jr., The “Pacto de Sangre” in the Late Nineteenth-Century Nationalist
Emplotment of Philippine History, 58 Phil. Studies 1/2, 79, 81–83 (June 2010).
13 Carmencita T. Aguilar, The Muslims in Manila Prior to Colonial Control, 2 Sojourn: J.
Soc. Issues Southeast Asia 1, 150, 156 (February 1987).
14 Sharon Delmendo, The Star- Entangled Banner: One Hundred Years of
America in the Philippines, 27 (Rutgers University Press, 2004).
during the American regime, as the new colonizer institutionalized the “other-
ness” of “non-Christian” Filipinos from their counterparts in society who had
accepted colonization and westernization.
§2 Developments in International Law: An Overview
I Natural Law and the Law of Nations

Unlike other learned personages of his time, 16th century Spanish theologian
and jurist Francisco de Vitoria15 saw “Indians” from the Americas as human
beings who possessed the faculty of reason, and described them, thus:
The Indian aborigines are not barred from this ground (of unsoundness
of mind) from the exercise of true dominion. This is proved from the fact
that the true state of the case is that they are not of unsound mind, but
have, according to their kind, the use of reason. This is clear, because
there is a certain method in their affairs, for they have polities which are
orderly arranged and they have definite marriage and magistrates, over-
lords, laws and workshops, and a system of exchange, all of which call for
the use of reason; they also have a kind of religion. Further, they make no
error in matters which are self-evident to others; this is witness to their
use of reason.16
Vitoria’s propositions substantiates the ownership of land and property

by Indians, who “had true dominion in both public and private matters, just
like Christians, and that neither their princes not private persons could be
despoiled of their property on the ground of their not being true owners”.17
Moreover, Vitoria refuted the Pope’s power over temporal affairs, and argued
that the Indians were not divested of their land and property for being non-
Christians: “[u]nbelief does not destroy either natural law or human law; but
ownership and dominion are based either on natural or human law; therefore
15 De Vitoria is also referred to as Franciscus de Victoria in other literature.

16 Franciscus de Victoria, The First Relectio of the Reverend Father, Brother Franciscus
de Victoria, On the Indians Lately Discovered (hereinafter, Vitoria, On the Indians) in De In-
dis et de Ivre Belli Reflectiones being Parts of Relectiones Theologicae
XII 127 (Ernest Nys, ed., John Pawley Bate, trans.) (The Carnegie Institution of Washing-
ton, 1917) (1696).
17 Id. at 128.
10 chapter 1
they are not destroyed by want of faith”.18 He referred to this body of law as
“the law of nations (jus gentium), which is either natural law or is derived from
natural law: ‘What natural reason has established among all nations is called
the jus gentium.’ ”19 For Vitoria, the temporal matters of property and own-
ership were governed by jus gentium administered by secular authority, and
not by divine law dispensed by religious officials.20 He likewise debunked the
authority of the Holy Roman Emperor to discover and conquer the Americas:21
“The Emperor is not the lord of the whole earth. This is proved from the fact
that dominion must be founded either on natural or divine or human law; but
there is no lord of the earth in any of these …”22
Vitoria argued that the right of discovery – “that what belongs to nobody
is granted to the first occupant”23 – could not be invoked under jus gentium, as
the territories in question were not without an owner. The right of discovery,
“in and by itself … gives no support to a seizure of the aborigines any more
than if it had been they who had discovered us.”24 Thus, according to him, the
Americas were not res nullius and could not be claimed by virtue of the right to
discovery, precisely because the Indians were the true owners such territories.
In The Freedom of the Seas, Grotius echoed Vitoria: “discovery per se gives
no legal rights over things unless before the alleged discovery they were res
nullius”.25
Notably, Vitoria was ambivalent about the legality of what can be consid-
ered guardianship by Spain of the Americas on the basis of indigenous peo-
ples’ incapacity to govern themselves: “I dare not affirm it all, nor do I entirely
condemn it”. According to Vitoria,
Although the aborigines in question are (as has been said above) not
wholly unintelligent, yet they are little short of that condition, and so are
unfit to found or administer a lawful State up to the standard required
18 Vitoria, On the Indians 123.

19 Id. at 151.
20 Anghie, The Making of International Law 17–18
21 See in general, Alfred P. Rubin, International Law in the Age of Columbus, 39 N.L. Int’l
L. Rev. 5, 35 (1992) DOI: 10.1017/S0165070X00006082.
23 Id. at 139.
24 Ibid.
25 Hugo Grotius, The Freedom of the Seas or the Right which Belongs to
the Dutch to Take Part in the East Indian Trade (hereinafter, Grotius, Freedom
of the Seas) 13 (James Brown Scott, ed., Ralph Van Deman Magoffin, trans., Carnegie En-
dowment for International Peace, Oxford University Press, 1916) (1608).
by human and civil claims. Accordingly, they have no proper laws nor
magistrates, and are not even capable of controlling their family affairs;
they are without any literature or arts, not only the liberal arts, but the
mechanical arts also; they have no careful agriculture and no artisans;
and they lack many other conveniences, yea necessaries, of human life. It
might, therefore, be maintained that in their own interests the sovereigns
of Spain might undertake the administration of their country providing
them with prefects and governors for their towns, and might even give
them new lords, so long as this was clearly for their benefit. I say there
would be some force in this contention; for if they were all wanting in in-
telligence, there is no doubt that this would not only be a permissible, but
also a highly proper, course to take; nay, our sovereigns would be bound
to take it, just as if the natives were infants.26
The Indian, being possessed of reason, was like the Spaniard, who was subject
to the universally binding jus gentium; however, unlike the Spaniard who com-
plied with universal norms, the Indian was inordinately divergent in social and
cultural practices.27 Ostensibly, Vitoria’s exposition of this dichotomy, if not
inferiority in the Indian’s character, influenced the entrenchment of indige-
nous peoples’ “otherness”.28
Grotius also described native peoples as “intelligent and shrewd”.29 In ar-
guing against Portuguese sovereignty over the East Indies (but nevertheless de-
fending the Dutch’s right of navigation and trade) he wrote, “… the East Indian
nations in question are not the chattels of the Portuguese, but are free men and
sui juris”.30 These characterizations by Vitoria and Grotius were humane,
even generous, compared to how other scholars considered indigenous peo-
ples: “among other things, slaves, sinners, heathens, barbarians, minors, luna-
tics and animals”,31 which portrayals endured over centuries.
The view of Vitoria and Grotius that territories belonging to indigenous
peoples were neither res nullius nor terra nullius – empty or uninhabited ter-
ritory – and were not susceptible to colonization, did not prevail in the course

27 Anghie, The Making of International Law 22.
28 See Georg Cavallar, Vitoria, Grotius, Pufendorf, Wolff and Vattel: Accomplices of European
Colonialism and Exploitation or True Cosmopolitans, 10 J. Hist. Int’l. L. 181 (2008), where
Cavallar argues that according to Anghie, “… Vitoria paved the way for later legal con-
structions of the allegedly uncivilized other”.
29 Grotius, Freedom of the Seas 13.
30 Id. at 21.
31 Angie, The Making of International Law 19.
12 chapter 1
of history. Gilbert maintains that as the race for colonies escalated, “territo-
ries with no form of ‘civilised’ and recognisable government”32 or a State-run
system were colonized on the ground that they were terra nullius, notwith-
standing occupation thereof by nomadic tribes. The treatment of indigenous
peoples as non-entities in international law is evident in the case Legal Status
of Eastern Greenland.33 In resolving the dispute between Norway and Den-
mark, the Permanent Court of International Justice afforded no weight to the
presence of the Inuit in Eastern Greenland, and that they had defended their
territories from Nordic settlers.34 As Anaya explains, “[t]his case … illustrates
the operation of the positivists’ international law, which affirmed sovereign-
ty built upon colonialism to the exclusion of the sovereignty of indigenous
peoples”.35
It was only in 1975 that the International Court of Justice (icj) affirmed the
perspectives of Vitoria and Grotius in its Western Sahara Advisory Opin-
ion,36 finding that,
The expression “terra nullius” was a legal term of art employed in connec-
tion with ‘occupation’ as one of the accepted legal methods of acquiring
sovereignty over territory. “Occupation” being legally an original means
of peaceably acquiring sovereignty over territory otherwise than by ces-
sion or succession, it was a cardinal condition of a valid “occupation” that
the territory should be terra nullius – a territory belonging to no one – at
the time of the act alleged to constitute the “occupation”.37
Moreover, the icj held that “territories inhabited by tribes and peoples hav-
ing a social and political or organization were not regarded as terrae nullius”.38
This is particularly relevant when the colonizer’s occupation is predicated on
agreements with the leaders of the peoples living in the territory in question,
as in the case of Spain’s occupation of Western Sahara. It took 17 years for a
32 Jérémie Gilbert, Nomadic Peoples and Human Rights (hereinafter, Gilbert, No-
madic Peoples), 95 (Routledge, 2014).
33 Legal Status of Eastern Greenland (Denmark v. Norway), 1933, p.c.i.j. (ser. A/B) No. 53
(April 5).
34 Id. at 29. See also, S. James Anaya, Indigenous Peoples in International Law
(hereinafter, Anaya, Indigenous Peoples), 31, 2nd ed. (Oxford University Press, 2004);
Doyle, fpic 67.
35 Anaya, Indigenous Peoples 31.
36 Western Sahara (Advisory Opinion) i.c.j. (October 1975).
37 Id. at par. 79, 39.
38 Id. at par. 80, 39.
domestic court to reflect the icj’s findings in 1975. In Mabo v. Queensland ii

decided in 1992, the High Court of Australia repudiated the long-standing jur-
isprudential precept of terra nullius, and recognized a form of native title that,
in some cases, survived British occupation. This native title has since afforded
the indigenous inhabitants of Queensland rights of ownership and usufruct to
their traditional lands, in accordance with their laws or customs. The landmark
ruling in Mabo v. Queensland ii paved the way for the enactment of Australia’s
Native Title Act 1993, which provides for the recognition and protection of na-
tive title.
II The Uncivilized Other

The decline of the respublica Christiana – where the Pope, as the vicar of Christ
and the representative of God on earth, wielded authority over both the spir-
itual and the secular 39 – ushered in a world order where positive law created
and administered by sovereigns was the source of international law.40 It gave
rise to the modern concept of sovereignty – the absolute and perpetual power
of the commonwealth – as theorized by Bodin’s seminal work, Les six livres de
la république in 1576,41 and followed by Hobbes’s Leviathan 42 75 years later.
The domination of European empires and the spread of colonization devel-
oped into Eurocentric international law,43 and what Oppenheim describes as
“essentially a product of Christian civilization.”44
Since “natives” were considered uncivilized – “animals,” “monkeys,” “back-
ward children,” and “fierce savages” – according to the standards imposed by
European and North America’s neo-European societies, indigenous nations
were excluded from the Family of Nations, which was comprised only of civi-
lized States.45 Indigenous peoples’ otherness – their political, social, and legal
39 Robert Jackson, Sovereignty in World Politics: A Glance at the Conceptual and Historical
Landscape, Pol. Stud. xlvii, 431, 436 (1999).
40 Anghie, The Making of International Law 20.
41 See Jean Bodin, On Sovereignty: Four Chapters from Six Books of the Com-
monwealth, Book i, Ch. 8, 1–45 (Julian H. Franklin, trans., ed. Cambridge University
Press, 1992).
42 See Thomas Hobbes, The Leviathan (CB Macpherson, ed. Penguin UK 2003).
43 See generally, Anghie, The Making of International Law; Matthew Craven, Colonial-
ism and Domination in The Oxford Handbook of International Law, 865 et seq.
(Bardo Fassbender and Anne Peters, eds., Oxford University Press, 2012); Kim Benita Vera,
From Papal Bull to Racial Rule: Indians of the Americas, Race, and the Foundations of Inter-
national Law, 42 Cal. W. Int’l L.J. 2, 453, 471 (2011).
44 L. Oppenheim, International Law, A Treatise, 2, Vol. 1 (1st ed., Longmans, Green,
and Co., London, 1905).
45 Anaya, Indigenous Peoples 29.
14 chapter 1
structures, art and culture, and treatment of land that starkly differed from
European norms – relegated them as primitive polities that were not worthy
of sovereignty that characterized European and neo-European States. This ab-
sence of sovereignty or indeed, the non-recognition of the sovereignty of indig-
enous peoples, equated to their lack of legal personality in international law.46
However, try as they might, indigenous peoples could not have attained the
degree of civilization that would have merited recognition of their sovereignty.
They were faced with a vicious cycle that Koskonniemi explained, thus:
Here was the paradox: if there was no external standard for civilization,
then everything depended on what Europeans approved. What Europe-
ans approved, again, depended on the degree to which aspirant com-
munities were ready to play by European rules. But the more eagerly the
non-Europeans wished to prove that they played by European rules, the
more suspect they became: had not Bluntschli argued that only “non-
Aryans” bowed down in front of their masters? In order to attain equality,
the non-European community must accept Europe as its master – but to
accept a master was proof that one was not equal.47
Indeed, in the 1823 case of Johnson v. M’Intosh,48 the Supreme Court of the
United States (scotus), through Chief Justice John Marshall, depict-
ed Indians as “fierce savages whose occupation was war … To leave them in
possession of their country was to leave the country as a wilderness; to govern
them as a distinct people was impossible…” Steiger explains that, “[o]nly the
civilized nations could organise themselves in the form of states, have laws
and execute them.”49 In Cherokee Nation v. Georgia,50 the Marshall Court ruled
that the Cherokee Nation was not a foreign nation; rather, it was composed
part of the United States as a “domestic dependent nation”.51 Indian territories
“were in a state of pupilage. Their relation to the United States resembles that
46 Mattias Åhrén, Indigenous Peoples’ Status in the International Legal

System, 13–15 (Oxford University Press, 2016).
47 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870–1960, 135–36 (Cambridge University Press, 2001).
48 Johnson & Graham’s Lessee v. M’Intosh, 21 U.S. 543, 590 (1823).
49 Heinhard Steiger, From the International Law of Christianity to the International Law of the
World Citizen – Reflections on the Formation of the Epochs of the History of International
Law, 3 J. Hist. Int’l L. 180, 187 (2001). See also, Robert A. Williams, Jr., Encounters on the
Frontier of International Human Rights Law: Redefining the Terms of Indigenous Peoples’
Survival in the Worlds, 1990 Duke L. J. 4, 666 (September 1990).
50 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).
51 Id. at 17.
of a ward to his guardian.”52 However, the third case in the Marshall trilogy,
Worcester v. Georgia,53 which was decided a year later, recognized the right of
the Cherokee Nation of self-government, and held that –
The Indian nations have always been considered as distinct, independent

political communities, retaining their original natural rights, as the un-
disputed possessors of the soil, from time immemorial … The very term
“nation,” so generally applied to them, means “a people distinct from oth-
ers.” … The words “treaty” and “nation” are words of our own language, se-
lected in our diplomatic and legislative proceedings, by ourselves, having
each a definite and well understood meaning. We have applied them to
Indians, as we have applied them to the other nations of the earth. They
are applied to all in the same sense.54
While the Cherokee Nation was sovereign relative to Georgia and the other
states of the Union, it was still not a member of the Family of Nations: “The
treaties and laws of the United States contemplate the Indian territory as com-
pletely separated from that of the states; and provide that all intercourse with
them shall be carried on exclusively by the government of the union.”55
Similarly, in the 1926 case Cayuga Indians (Great Britain) v. United States,56
the International Arbitral Tribunal found that the Cayuga Indians were bereft
of international legal personality: “such a tribe is not a legal unit of internation-
al law.”57 It held that, “[f]rom the time of the discovery of America the Indian
tribes have been treated as under the exclusive protection of the power by which
discovery or conquest or cession held the land which they occupied.”58 Quoting
American jurisprudence, the tribunal found that the Caguya Indians were in a
state of pupilage and were wards of, and dependent on, the United States.59
In Island of Palmas,60 the fact that native Radjas or princes executed treaties
with the Dutch East India Company had little bearing in resolving whether the
Island of Palmas, located between Cape San Agustin in Mindanao, Philippines,
and the Nanusa Group of Islands, was part of the territory of the United States
52 Ibid.
53 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
54 Id. at 559–560.
55 Id. at 557.
56 Cayuga Indians (Great Britain) v. United States, 6 unriaa 173 (1926).
57 Id. at 176 (1926).
58 Ibid.
59 Id. at 177.
60 Island of Las Palmas Case (United States v. Netherlands) 2 unriaa 831 (1928).
16 chapter 1
or The Netherlands. The United States argued that it had sovereignty over the
Island of Palmas, as it formed part of the Philippine archipelago, which Spain
had ceded to it by virtue of the Treaty of Paris. The Netherlands, on the other
hand, asserted that as early as the mid-1600s, it had possessed and exercised
rights of sovereignty over the Island of Palmas, among other territories, on ac-
count of conventions it had entered into with native princes. According to The
Netherlands, these conventions established its suzerainty over the island in
contention.
Swiss Arbitrator Max Huber ruled in favor of The Netherlands on the basis
of its continuous and peaceful display of State authority over the Island of Pal-
mas.61 Although Huber took the contracts presented by The Netherlands into
consideration, he nevertheless ratiocinated thus: “As regards contracts between
a State or a Company such as the Dutch East India Company and native princ-
es or chiefs of peoples not recognized as members of the community of nations,
they are not, in the international law sense, treaties or conventions capable
of creating rights and obligations such as may, international law, arise out of
treaties.”62
In the more recent Case Concerning the Land and Maritime Boundary be-
tween Cameroon and Nigeria63 decided in October 2002, the icj acknowledges
that in the 19th century, particularly at the time of Berlin Conference of 1884 to
1885, European Powers entered into numerous treaties with local rulers. Great
Britain alone executed some 350 treaties with notable local personages of
the Niger Delta, including the 1884 “treaties of protection” with the Kings and
Chiefs of Opobo, and with the Kings and Chiefs of Old Calabar.64 Nigeria ar-
gued that title remained vested with Old Calabar as a sovereign entity because
the 1884 Treaty, which created an international protectorate, did not result in
the transfer of title to Great Britain.65 According to the icj, ‘[i]n sub-Saharan
Africa, however, treaties termed ‘treaties of protection’ were not entered into
with States, but rather with important indigenous rulers exercising local rule
over identifiable areas of territory”.66 In elaborating on the nature of the treaty,
it quotes Island of Palmas, which states that, such a treaty “is not an agreement
61 Id. at 869–870 (1928).

62 Id. at 858. Italics supplied.
63 Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea Intervening) (hereinafter, Cameroon v. Nigeria)
(Judgment), i.c.j. Rep. 303 (October 2002).
64 Id. at para. 203, 404.
65 Id. at para. 204, 404.
66 Id. at para. 205, 405.
between equals; it is rather a form of internal organisation of a colonial territo-

ry, on the basis of autonomy of the natives …”67 Thus, the icj held that –
207. In the view of the Court, many factors point to the 1884 Treaty signed
with the Kinds and Chiefs of Old Calabar as not establishing an interna-
tional protectorate. It was one of a multitude in a region where the local
Rulers were not regarded as States. Indeed, apart from the parallel decla-
rations of various lesser Chiefs agreeing to be bound by the 1884 Treaty,
there is not even convincing evidence of a central federal power. There ap-
pears in Old Calabar rather to have been individual townships, headed by
Chiefs, who regarded themselves as owing a general allegiance to more
important Kings and Chiefs. Further, from the outset Britain regarded it-
self as administering the territories comprised in the 1884 Treaty, and not
just protecting them.68
The significance to indigenous peoples of the exclusive possession of legal

personality by the State is profound: indigenous peoples were precluded from
holding and enforcing rights and obligations under international law, particu-
larly relative to the treaties and agreements they executed with their coloniz-
ers, and even corporations founded in the latter. As theorized by UN Special
Rapporteur Miguel Alfonso Martínez, these very treaties and agreements
contributed to the divestment of the attributes of their statehood:
105. Consequently, the problematique of indigenous treaties and other

juridical instruments today affecting the lives of these peoples, hinges
on what the Special Rapporteur has termed a process of retrogression, by
which they have been deprived of (or saw greatly reduced) three of the
four essential attributes of which their original status as sovereign nations
was grounded, namely their territory, their recognized capacity to enter
into international agreements, and their specific forms of government.69
Based on the Special Rapporteur’s findings, the indigenous parties to the instru-
ments rejected the stipulations purporting relinquishment of these attributes of
statehood, imputing vitiated consent on account of fraud or induced error as to
67 Ibid.
68 Cameroon v. Nigeria at para. 207, 405–406. Italics supplied.
69 un ecosoc, Study on the Treaties, Agreements and other Constructive Arrangements
between States and Indigenous Populations, Final Report by Miguel Alfonso Martínez,
Special Rapporteur (hereinafter, Special Rapporteur, Study on Treaties), para. 105, 17, UN
Doc. E/CN.4/Sub.2/1999/20 (22 June 1999).
18 chapter 1
the object and purpose of the compacts; challenges caused by the use of Europe-
an languages in the drafting of these compacts; or their ancestors’ lack of knowl-
edge of the existence of these stipulations.70 They further contend that their cul-
ture and traditions – particularly those relating to the inalienability of land and
its centrality to their very existence – would have precluded their ancestors from
knowingly and willingly relinquishing these attributes.71 Nevertheless,
267. The State parties to those compacts – which have benefitted the
most from gaining jurisdiction over former indigenous lands – argue that
those attributes were indeed relinquished, on the basis of provisions of
their domestic legislation and decisions of their domestic courts, as well
as on the realities of today’s world, and of the historical developments
leading to the present situation. However, the principle that no one can
go against his own acts goes back to ancient Rome and as valid as a gen-
eral principle of law at the time of the dispossession.72
Pacta sunt servanda,73 though codified only in 1969 in the Vienna Convention
on the Law of Treaties, takes its roots from antiquity.74 It had already served as
the cornerstone of treaty-making, and a fundamental principle of internation-
al law in the 19th century.75 The sanctity of contracts should have protected the
rights and obligations of indigenous peoples under the agreements and trea-
ties they had forged with their European and neo-European colonizers. How-
ever, since indigenous societies did not possess international legal personality,
they could not have benefitted from the principle pacta sunt servanda.
1 The Berlin Conference of 1884 to 1885

In an attempt to resolve the rising tension in European-African relations, Ger-
many convened the Berlin Conference of 1884–1885, which had resulted in the
ratification by European nations and the United States of the “General Act of the
Conference of Berlin Concerning the Congo” on 26 February 1885. The General
Act contained declarations on six issues: (1) liberty of trade in the Congo Ba-
sin, and neighboring countries; (2) the abolition of the slave trade; (3) the neu-
trality of territories in the Congo Basin; (4) the navigation of the Congo; (5) the
70 Id. at para. 266, 42; para. 58, 10–11.

71 Id. at para. 266, 42 cf para. 217, 33–34.
72 Id. at para. 267, 42.
73 See Hugo Grotius, The Law of War and Peace, Book ii, Ch. xi (Francis W. Kelsey,
trans., Oxford, 1925).
74 See generally, Hans Wehberg, Pacta Sunt Servanda, 53 Am. J. Int’l L. 4 (October 1959).
75 Id. at 782–785; Special Rapporteur, Study on Treaties at para. 279, 44.
navigation of the Niger; and (6) uniform rules on the prospective occupation of
African coasts,76 which in essence, partitioned the African continent on the basis
of European colonial boundaries.77 These artificial, externally-imposed bound-
aries apportioned Africa and its bountiful natural resources among the coloniz-
ing nations, without regard to the traditional territories of the affected peoples.
None of the African rulers and chiefs of the affected territories was repre-
sented during the Berlin Conference, despite the existence of treaties between
them and the colonialists.78 However, they were not entirely passive, given the
different agreements, including treaties of protection, navigation, and com-
merce that existed between the rulers and chiefs, and the European Powers.
These treaties influenced the partitioning process, although to a limited ex-
tent, as it was “only when a European power concerned decided so, were the
treaties [with Africans] taken into consideration in connexion with the terri-
torial settlements”.79 Moreover, Alexandrowicz argues that the nature of
these treaties were discussed and taken into consideration during the Berlin
Conference, with the express acknowledgment of the trust for the protection
of African communities as one of its outcomes.80
It is in this context that the Berlin Conference paved the way for the incep-
tion of “the principle of the sacred trust of civilization”, on account of its depic-
tion of indigenous populations as incapable of self-governance, and as such, in
need of guardianship by more advanced European nations. A commission of
the Berlin Conference referred to indigenous peoples, thus:
In regard to these populations, which for the most part should without
doubt, be considered as finding themselves without the community of
the law of nations, but who, in the present state of affairs, are scarcely
qualified to defend their own interests, the Conference has thought prop-
er to assume the role of official guardian. The necessity of securing the
preservation of aborigines, the duty to aid them to attain higher political
and social status, the obligation to instruct and initiate them into the ad-
vantages of civilization are unanimously recognized.
76 General Act of the Conference of Berlin Concerning the Congo, 3 Am. J. Int’l. L. 1, 7
(January 1909).
77 Ieuan Griffiths, The Scramble for Africa: Inherited Political Boundaries, 152 Georg. J. 2
(hereinafter, Griffiths, Scramble for Africa) 204, 204 (July 1986).
78 Charles H. Alexandrowicz, The Juridical Expression of the Sacred Trust of Civilization
(hereinafter, Alexadrowicz, Sacred Trust), 65 Am. J. Int’l. L. 1 149, 151 (January 1971).
79 Griffiths, Scramble for Africa 207, quoting Saadia Touval, 1966 Treaties, Borders and the
Partition of Africa, 7 J. Afr. Hist. 2, 279–93 (1966).
80 Id. at 152.
20 chapter 1
It is the future of Africa which is here at issue. No dissent manifested

itself, in this respect in the commission.81
The principle of the sacred trust of civilization was the basis of the Mandates
System under Article 22 of the Covenant of the League of Nations, and the
International Trusteeship System that persisted under Chapter xii of the UN
Charter.
2 The League of Nations and the Mandates System

The aftermath of the First World War saw the creation of the League of Na-
tions, which had the objective of promoting international cooperation, and
achieving international peace and security.82 Article 22 of its Covenant insti-
tuted the Mandates System that covered “colonies and territories which as a
consequence of the late war have ceased to be under the sovereignty of the
States which formerly governed them and which are inhabited by peoples not
yet able to stand by themselves under the strenuous conditions of the modern
world”. That the wellbeing and development of the colonized peoples formed
a sacred trust of civilization served as the predominant principle in the dis-
charge of the Mandates System. Article 22 further provides: “The best method
of giving practical effect to this principle is that the tutelage of such peoples
should be entrusted to advanced nations who by reason of their resources,
their experience or their geographical position can best undertake this re-
sponsibility, and who are willing to accept it, and that this tutelage should be
exercised by them as Mandatories on behalf of the League.” The former colo-
nies were categorized as A, B, or C Mandates based on the stage of the devel-
opment of the people, the geographical situation of the territory, and its eco-
nomic conditions.83 To ensure the observance by Mandatories of the sacred
trust of civilization, the Permanent Mandates Commission was constituted
to (a) receive and examine the annual reports of the Mandatories; and (b) to
advise the League of Nations Council on all matters relating to the observance
of the Mandates.84
81 Robert H. Berry iii, Indigenous Nations and International Trade, 24 Brook. J. Int’l. L.
(hereinafter, Berry, Indigenous Nations) 239, 280 (1998–1999), quoting the Report Made in
the Name of the Commission Charged to Examine the Projét de Declaration Concerning
Liberty of Commerce in the Basin of the Congo and its Affluents in A Report of the Secre-
tary of State Relative to Affairs of the Independent State of the Congo, 20 Exec. Doc. No.
196, 49th Congress, 1st Session (1886).
82 League of Nations, The Covenant of the League of Nations, Preamble (28 April 1919).
83 Ibid.
84 The Covenant of the League of Nations, Art. 22.
While the application of the Mandates System was limited to the former
colonies of Germany and the Ottoman Empire, all the Members of the League
of Nations were exhorted to “undertake to secure just treatment of the native
inhabitants of territories under their control”.85 Consequently, although the
Mandates System did not apply to the Philippines, the United States was legal-
ly bound to fulfill its obligations under the Covenant during its membership in
the League of Nations.
§3 The International Labour Organization
The ilo was created in 1919, in the wake of First World War. Its original Constitu-
tion is contained in Part xiii of the Treaty of Peace of Versailles,86 which hinged
the Organization’s purpose on the League of Nations’ overarching objective of
establishing universal and lasting peace in recognition that, “such a peace can
be established only if it is based upon social justice”.87 Unique in its tripartite
structure since its establishment, the ilo is characterized by the representation
of delegates from its Members’ Governments, Employers, and Workers.
The ilo was created when colonialism was still the world order, and the
League of Nations was on a mission to civilize the “natives”. Considering that
its original Constitution was explicit in acknowledging the “supreme interna-
tional importance” of the physical, moral, and intellectual wellbeing of indus-
trial wage earners, and its Members exhorted the application of methods and
principles to all industrial communities,88 the ilo primarily set standards for its
Membership, which was comprised mostly of industrialized European States.89
Nevertheless, the original ilo Constitution provided that, conventions ratified
by Members applied to their colonies, protectorates, and possessions that were
not self-governing. Mandatories used the absence of Mandates in the enumer-
ation to deny the application of Conventions to their mandated territories.90
85 The Covenant of the League of Nations, Art. 23 (b).

86 Treaty of Peace with Germany (hereinafter, Treaty of Versailles), Part xiii, Sec. i (28
June 1919).
87 Treaty of Versailles, Part xiii, Sec. i.
88 Treaty of Versailles, Part xiii, Sec. ii, Art. 427.
89 Gerry Rodgers, Eddy Lee, et al., The International Labour Organization, and the Quest for
Social Justice, 1919–2009 (hereinafter, Rodgers et al., The ILO) 41. (International Labour
Office, 2009).
90 Luis Rodríguez- Piñero, Indigenous Peoples, Postcolonialism and Inter-
national Law (hereinafter, Rodríguez-Piñero, Indigenous Peoples), 24, (Oxford Universi-
ty Press, 2005).
22 chapter 1
Moreover, the clause allowed for exceptions: “(1) … where, owing to the local
conditions, the convention is inapplicable, or (2) subject to such modifications
as may be necessary to adapt the convention to local conditions”.91 Article 35
on the application of conventions to non-metropolitan territories – the ter-
minology for colonies and protectorates, and other non-self-governing posses-
sions in the ilo’s Constitution – similarly provides for exceptions: “where the
subject-matter of the Convention is within the self-governing powers of the
territory or the Convention is inapplicable owing to the local conditions or
subject to such modifications as may be necessary to adapt the Convention to
local conditions”. Since Members enjoyed broad discretion, lower labor stan-
dards were applied in colonies, and indigenous workers enjoyed less protec-
tion than their counterparts living in Members’ home territories.92
I The “Native Labour Code”

The ilo’s research on the situation of indigenous and tribal populations in col-
onies and dependent territories began in the early 1920s,93 and a Committee
of Experts of Native Labour was established by 1926. The recommendations of
the Committee influenced what became the “Native Labour Code”, a series of
ilo Conventions affecting indigenous peoples that were crafted and ratified
between 1926 and 1956.94 Rodríguez- Piñero describes what he calls the
“Colonial Code” as “a different set of international labour standards specifi-
cally aimed at disciplining the conditions of exploitation of ‘indigenous work-
ers’, chiefly in colonial territories”.95 Apart from the general application of the
1930 Forced Labour Convention (No. 29), one of the eight fundamental ilo
Conventions, it also aimed to address the question concerning “native labour”.
This was important because the ilo’s earlier conventions “have in general had
reference to conditions of labour in the more highly developed countries, and
experience has shown that they have been little adapted to the conditions in
countries in which industry is still in a primitive stage”.96 In 1936, the Interna-
tional Labour Conference (ilc) adopted the Convention concerning the Regu-
lation of Certain Special Systems of Recruiting Workers (No. 50), the very first
international convention focused on regulating the treatment, and in some
91 Treaty of Versailles, Part xiii, Ch. iii, Art. 421.

92 Rodgers et al., The ilo 42.
93 Rodríguez-Piñero, Indigenous Peoples 17.
94 See in general, Rodríguez-Piñero, Indigenous Peoples.
96 Jean Goudal, The Question of Forced Labour before the International Labour Conference,
xix Int’l. Labour Rev. 5, 621, 622 (May 1929).
measure, protecting the interests of indigenous workers. Two other conven-

tions on indigenous workers followed and were adopted in 1939: the Conven-
tion concerning the regulation of Written Contracts of Employment of Indig-
enous Workers (No. 64), and the Convention concerning Penal Sanctions for
Breaches of Contracts of Employment by Indigenous Workers (No. 65). Under
these three Conventions, an indigenous worker is a “worker belonging to or as-
similated to the indigenous population of a dependent territory of a Member
of the Organisation, or belonging to or assimilated to the dependent indige-
nous population of the home territory of a Member of the Organisation”.97 The
regulations and standards prescribed, as well as the protections afforded by
these Conventions, applied to indigenous workers in both the home territory
of a Member-State and its dependent territory. The use of the more general ter-
minology “dependent territory”, instead of the incomplete enumeration under
the Forced Labour Convention, indicates that indigenous workers in Mandates
were likewise covered.
Although the League of Nations was among the casualties of the Second
World War, the adoption of the Declaration of Philadelphia 98 in 1944 ensured
the survival of the ilo. The UN officially came into existence on 24 October
1945, and the ilo became its first specialized agency in 1946.
In the same year, the International Labour Office published Living Con-
ditions of the Indigenous Populations in American Countries,99 which iden-
tified “a single Indian problem existing in all countries”, and the “common
denominator for all Indians in America”: “Indians everywhere, whether be-
cause of unfavourable economic conditions, biological degeneracy, or other
reason, are a backward people”.100 The study did not provide a definition of
who “Indians” were; it limits its discussion to sweeping descriptions: “Before
the conquest America belonged to the Indians and they, like their ances-
tors, were absolute rulers… They had developed strong empires and stable
97 Ilo, Convention concerning the Regulation of Written Contracts of Employment of In-

digenous Workers (No. 64), 25th ilc session (27 June 1939), Art. 1 (a); ilo, Convention
concerning Penal Sanctions for Breaches of Contracts of Employment by Indigenous
Workers (No. 65), 25th ilc session (27 June 1939), Art. 1; ilo Convention concerning the
Regulation of Certain Special Systems of Recruiting Workers (No. 50), 25th ilc session (27
June 1939), Art. 2 (b) gives the same definition but in the plural.
98 Declaration of Philadelphia, ilo General Conference, 26th session (10 May 1944). See
Christine Kaufmann, Globalisation and Labour Rights, The Conflict Be-
tween Core Labour Rights and International Economic Law, 51–52 (Hart Pub-
lishing, 2007).
99 Victor Gabriel Garcés, Living Conditions of the Indigenous Populations in American
Countries (hereinafter, Garcés, 1946 Report) (International Labour Office, 1946).
100 Id. at 1.
24 chapter 1
civilizations and the study of Aztec, Maya, and Inca cultures, not to mention
other more ancient cultures that survived in pre- Columbian America, shows
that American civilization was expanding and developing”.101 While the
study found that, “the Indian is always in an inferior position to Whites and
Mestizos”,102 it nevertheless affirmed that, “on the whole, the Indians have
remained strong, vigorous types of humanity, able to survive in unfavour-
able circumstances and resist all kinds of hardships. If they had not been a
hard race, they would have disappeared long ago as a result of the hardships
they have endured in the past – which they continue to endure in the pres-
ent”.103 The study also recognized the crucial function land plays in the lives
of indigenous peoples, as well as the far-reaching impacts foisted by colo-
nization: “Ownership of land as we know it only developed after the forces
of the conquerors broke over the agrarian calm of America. Before that the
Indians believed that the land should belong to the community, since it was
worked by all the members of the community and only in special cases could
any individual own land.”104 Written prior to the advent of the human rights
regime, the study nevertheless revealed an astute appreciation of individ-
ual and collective rights: “The Indians seem to show two main tendencies,
which are complementary rather than antagonistic: the desire to keep their
communal life as an entity in itself and the desire to protect individual rights
within the community”.105
In 1947, the ilc adopted the Convention concerning the Maximum Length
of Contracts of Employment of Indigenous Workers (No. 86), Article 1 of
which defines indigenous worker as “a worker belonging to or assimilated to
the indigenous population of a non-metropolitan territory”. The change in
nomenclature from dependent territory to “non-metropolitan territory” is a
reflection of the shift towards gradual decolonization under the UN regime.
Subsequently, the Convention concerning the Abolition of Penal Sanctions
for Breaches of Contract of Employment by Indigenous Workers was adopted
in 1955.
Despite the shortcomings of the Native Labour Code – an in-depth anal-
ysis of which is beyond the scope of this Book – its series of Conventions
were the first concerted efforts to recognize and address forced labor and
other issues affecting indigenous workers. The dated Conventions of the
101 Id. at 2. See pp. 10–11, where Garcés describes specific “Indian” tribes.
102 Id. at 6.
103 Id. at 11.
104 Id. at 3.
105 Id. at 5.
Native Labour Code are considered “shelved” and have been superseded by
conventions that are more relevant and responsive to the concerns of the
times.106
II The Integrationist Paradigm and Milestones in 1950s

In January 1951, a newly- constituted Committee of Experts on Indigenous
Labour comprised of a tripartite delegation from the Governing Body of
the International Labour Office and experts from Member States, con-
vened in La Paz, Bolivia.107 During its first session, the Committee of Ex-
perts discussed pressing issues affecting indigenous workers.108 It also
adopted resolutions on other concerns, including conditions of work and
health of women workers in indigenous populations, and the protection of
indigenous children and young workers.109 The Governing Body approved
the report and resolutions of the Committee of Experts during its 114th
Session in Geneva in March 1951.110 The Committee of Experts conducted
its second session in 1954, during which they afforded special attention to
the plight of forest-dwelling indigenous peoples, as well as to indigenous
land rights.111
Another watershed was the establishment of the Andean Indian Programme
(aip) in 1953. The aip was a multinational development project spearheaded
by the ilo, and other UN agencies, including the Food and Agriculture Or-
ganization, the United Nations Education, Science and Culture Organization,
and the World Health Organization.112 It was implemented in Bolivia, Ecua-
dor, Peru, Argentina, Chile, Colombia, and Venezuela.113 Largely influenced
by American Indigenism, a movement that sought a scientific solution to the
106 Lee Swepston, The Foundations of Modern International Law on Indige-

nous and Tribal Peoples, Volume I: Basic Policy and Land Rights (hereinaf-
ter, Swepston, Indigenous and Tribal Peoples) 45 (Brill Nijhoff, 2015).
107 International Labour Office, Indigenous Peoples: Living and Working Conditions of Ab-
original Populations in Independent Countries, 590, (Geneva, 1953).
108 Ibid.
109 Id. at 599.
110 Ibid.
111 Ilo, Report vi(1) Partial Revision of the Indigenous and Tribal Populations Convention
1957 (No. 107) (75th Session, 1988), [hereinafter, ilo 75th Session Report vi(1)], 3.
112 Jef Rens, The Andean Programme (hereinafter, Rens, The Andean Programme), 84 Int’l
Lab. Rev. 423, 428 (1961).
113 Athanasios Yupsanis, International Labour Organization and its Contribution to the Protec-
tion of the Rights of Indigenous Peoples (hereinafter, Yupsanis, ilo), 49 Can. YB Int’l L.
117, 119 (2011). See in general, Rodríguez-Piñero, Indigenous Peoples.
26 chapter 1
“Indian problem”,114 the Program’s approach was both integrationist and pater-
nalistic,115 but as Rens argues, was not assimilationist:
This doctrine (of integration) involves recognition of the cultural values

peculiar to indigenous peoples; its aim is, not to destroy these values, but
to overcome the prejudices against them. For these peoples, assimilation
involves the sacrifice of their particular characteristics; integration, how-
ever, gives them the right to take their place in the national life of the
country in which they live while retaining their own personalities.116
Individual States assumed responsibility over the Program after the aip con-
cluded its work through the Proyecto Multinacional de Desarrollo Comunal An-
dino in the early 1970s.117
It was also in 1953 that the ilo published the seminal report, Indigenous Peo-
ples: Living and Working Conditions of Aboriginal Populations in Independent
Countries (1953 Study), a comprehensive survey on the situation of indigenous
peoples in independent countries in the Americas, Asia, and Australasia. The
1953 Study attempted to define “indigenous” but found the task …
… very difficult, since there is no standard which will apply in all cases for
defining groups as “indigenous” (or “Indian”, or “aboriginal”, according to
prevailing terminology). The notions with reference to which such groups
are classified are so flexible and varied that there are often discrepancies
in statistical data or estimates within a single country, and useful com-
parisons between one country and another are impossible. Different and
often contradictory criteria tend to be used by administrators, lawyers
and sociologists as a basis for their definitions, such as the colour of their
skin, language, customs, tribal conditions and living standards.118
This difficulty of defining “indigenous” persisted through the decades, and in-
deed, a universal and unequivocal definition remains elusive to this day. Indig-
enous peoples themselves have not only embraced this lack of definition, but
have even advocated against being constricted to a single, all-encompassing
State-imposed definition.

115 Yupsanis, ilo 119.
116 Rens, The Andean Programme 431.
117 Ilo 75th Session Report vi(1) 6.
118 1953 Study 3.
The 1953 Study probed actions to integrate indigenous peoples, and improve
their living and working conditions in the domestic and international levels. Two
more studies, both entitled Living and Working Conditions of Indigenous Popu-
lations in Independent Countries – one focused on the results of inquiries into
indigenous groups in America, Asia, the Middle East, Africa, and Australasia, and
the other, on the responses from governments, as well as comments and pro-
posed conclusions – were published in 1955 and 1956, respectively.
III Ilo Convention Concerning the Protection and

Integration of Indigenous and Other Tribal and Semi-
Tribal Populations in Independent Countries
The integrationist approach spilled over to the Convention concerning the Pro-
tection and Integration of Indigenous and Other Tribal and Semi-Tribal Popu-
lations in Independent Countries 119 (ilo c107), the first international legally
binding instrument on the rights of indigenous populations. The main thrust
of ilo c107 was the progressive integration of indigenous, tribal, and semi-
tribal populations into their respective national communities, as the solution
to the pervasive problem of their backwardness,120 and the means of improv-
ing their living and working conditions.121 Notably, the Convention excludes
recourse to force or coercion as a means of integrating the populations con-
cerned into the national community.122 ilo c107 was premised on progressive
integration as a matter of course, based on the assumption that indigenous
societies were but transitory in nature, and would eventually integrate with
mainstream society.123 Neither the Convention nor its accompanying Recom-
mendation No. 104 defines “integration”, notwithstanding its prominence in
the discourse on indigenous peoples at the ilo at the time.
Article 1 of ilo c107 does not provide a definition of indigenous, tribal, and
semi-tribal populations. Instead, it stipulates who constitutes “the populations
concerned”, and to whom its provisions apply:
(a) their social and economic conditions are at a less advanced stage than
the stage reached by the other sections of the national community;
(b) their status is regulated wholly or partially by their own customs or tradi-
tions or by special laws or traditions;
119 Ilo, Convention concerning the Protection and Integration of Indigenous and Other
Tribal and Semi-Tribal Populations in Independent Countries, 1957 (No. 107), 40th ilc
session, 26 June 1957.
120 Doyle, fpic 76.
122 Ilo C107, Art. 2(4).
123 Doyle, fpic 76.
28 chapter 1
(c) they 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 or colonization; and
(d) irrespective of their legal status, they live more in conformity with the
social, economic and cultural institutions of that time than with the in-
stitutions of the nation to which they belong.
ilo c107 reflected the understanding of equality and non-discrimination of
the time.124 Rodríguez- Piñero argues:
The goals and assumptions of the first international human rights regime
were consistent with the political model of ‘universal citizenship’ ad-
vanced by the classic liberal theory, typically translating the call for equal
rights into the imposition of a monolithic legal regime and a unitary
channel of political representation, while depriving cultural difference
of any institutional dimension beyond the private sphere.125
Thus, ilo c107’s objective of improving the social and economic conditions of
indigenous peoples was framed within an equality-means-uniformity frame-
work that envisioned the eventual homogeneity of society through the inte-
gration of indigenous groups. Additionally, compliance by the State-Parties
with ilo c107 was not closely supervised for over a decade,126 and by 1986,
the revision of the Convention was unanimously recommended as a matter of
urgency during the Meeting of Experts on the Revision of the Indigenous and
Tribal Populations Convention, 1975 (No. 107).127
Despite the limitations of ilo c107, it produced a normative framework
that served as a predicate for the evolution of indigenous peoples’ rights under
international law. It recognizes, among others, customary laws, and the right to
collective and individual ownership of land, notwithstanding its emphasis on
“the fostering of individual dignity, and the advancement of individual useful-
ness and initiative.”128 Article 12 introduced the requirement of free consent by
providing that, “[t]he populations concerned shall not be moved without their
free consent from their habitual territories …” However, the principle of free
124 Rodríguez- Piñero, Indigenous Peoples 196. See also, Hurst Hannum, New Devel-
opments in Indigenous Rights, 28 Va. J. Int’l L. (hereinafter, Hannum, Developments) 649,
636 (1987–1988).
125 Ibid.
126 Rodgers et al., The ilo 87.
127 Elnar Høgetveit, Revision of ILO C107 on Indigenous and Tribal Populations (1975), 5 Men-
nersker og Rettigheter 39, 39 (1987).
128 Ilo C107, Art. 2(3).
consent is diluted by the broad exceptions to its application on account of : (a)

national laws and regulations relating to national security; (b) the interest of
national economic development; or (c) health of the populations concerned.
The second exception is particularly problematic in the face of fast-paced de-
velopment,129 and the expansive discretion it allows the State. As a remedy,
Article 12(2) enjoins compensation in the event of removal of the populations
concerned, either in the form of land that is of equal quality to the lands they
previously occupied, or under appropriate guarantees, in money or in kind.
The General Conference of the ilo adopted ilo c107 in 1957. It entered into
force in June 1959 and had 27 ratifications before it was revised in 1989. Nine
countries automatically denounced ilo c107 when they ratified ilo c169: Ar-
gentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Paraguay, and
Peru. Portugal denounced it in 2009 but has not ratified ilo c169. At the time
of writing, ilo c107 is still in force relative to at least 17 countries.130
§4 The United Nations and the Human Rights Regime
The horror and human suffering inflicted by the Second World War served as
the impetus for the entreaty for international peace, security, and fundamen-
tal human rights in the Preamble of the UN Charter.131 Anaya describes this
departure from post-Wesphalian legal positivism as “… the reemergence of
classical-era naturalism, in which law was the basis of visions of what ought
to be, rather than simply on the basis of what is, and which contextualized the
state as an instrument of humankind rather than its master.”132
Notably, the UN Charter highlights respect for equal rights and the self-
determination of peoples as one of its purposes and principles.133 Chapter
xi, Article 73 of the UN Charter advocates self-government, with the declara-
tion that the interests of the inhabitants of non-self-governing territories are
paramount, and with due account of the political aspirations of the peoples
129 Doyle, fpic 77.

130 These countries are Angola, Bangladesh, Belgium, Cuba, Dominican Republic, Egypt, El
Salvador, Ghana, Guinea-Bissau, Haiti, India, Iraq, Malawi, Pakistan, Panama, Syrian Arab
Republic, and Tunisia. See ilo, Ratifications of C107-Indigenous and Tribal Populations Con-
vention, 1957 (No. 107), available at http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::-
NO: 11300:P11300_INSTRUMENT_ID:312252, last accessed 14 September 2016.
131 UN, Charter of the United Nations and Statute of the International Court of Justice (here-
inafter, UN Charter), 1945.
132 Anaya, Indigenous Peoples 50. Italics in the original.
133 UN Charter, Ch. i, Art. 1(2).
30 chapter 1
concerned. Unlike the League of Nations’ “sacred trust of civilization” which

fostered colonialism, the UN’s “sacred trust” was the “obligation to promote
to the utmost, within the system of international peace and security … the
well-being of the inhabitants of these territories, and to this end … to develop
self-government …”134 The UN persevered with the trusteeship system initiat-
ed by the League of Nations but gave considerable assurances of encouraging
respect for human rights and for fundamental freedoms for all, without dis-
tinction as to race, sex, language, or religion.135 In 1960, the General Assembly
adopted the Declaration on the Granting of Independence to Colonial Coun-
tries and Peoples, which states in part that, “[a]ll peoples have the right to self-
determination; by virtue of the right they freely determine their political status
and freely pursue their economic, social and cultural development.”136 In 1971,
the icj affirmed that the principle of self-determination applied to all non-self-
governing territories.137 It explained that, on account of legal developments
emanating from the UN Charter and customary law, the ultimate objective of
“sacred trust” had evolved into the self-determination and independence of
the peoples concerned.138 In line with the UN’s efforts to advance progressive
decolonization, Palau, the last trust territory, became fully self-governing in
1994, and East Timor became independent from Indonesia in 2002.139
It took the UN over two decades after its creation, and the adoption of the
Universal Declaration of Human Rights 140 (udhr), to give particular attention
to issues concerning indigenous peoples. Its earlier efforts were subsumed un-
der more general and distinct but nevertheless relevant fields of concern. In 1951,
the Genocide Convention 141 came into force. It proscribes the international
134 Id. at Ch. xi, Art. 73(b).

135 UN Charter, Chapter xii, Article 76 (c).
136 Unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries
and Peoples, para. 2, 94th plen. mtg., 14 December 1960. See unga Res. 1541 (xv), Principles
which should Guide Members in Determining Whether or Not an Obligation Exists to Trans-
mit the Information Called for Under Article 73e of the Charter (defining the three options
for self-determination), 948th plen. session, 15 December 1960. See in general, James Sum-
mers, Peoples and International Law 2nd ed. (Martinus Nijhoff Publishers, 2014).
137 Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion,
1971, i.c.j. 52 (21 June).
138 Ibid.
139 UN, The United Nations and Decolonization, http://www.un.org/en/decolonization/non-
selfgov.shtml, last accessed 26 October 2015.
140 Universal Declaration of Human Rights, unga Res. 217(iii)A, UN gaor, 3rd Session, 1st
plen. Mtg., UN Doc. A/810 (12 December 1948).
141 Convention on the Prevention and Punishment of the Crime of Genocide, unga Res. 260
A (iii) (9 December 1948).
crime of genocide, which consists of acts committed with intent to destroy, in

whole or in part, a national, ethnical, racial, or religious group, as such.142 More-
over, one of the core human rights treaties, the International Convention on
the Elimination of All Forms of Discrimination 143 (icerd), which entered into
force in 1969, guarantees protection against discrimination and fosters equality
before the law. Article 1 of the icerd defines “racial discrimination” as –
any distinction, exclusion, restriction or preference based on race, co-

lour, descent, or national or ethnic origin which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise, on an
equal footing, of human rights and fundamental freedoms in the politi-
cal, economic, social, cultural or any other field of public life.
The two components that complete the International Bill of Human Rights
together with the udhr, entered into force in 1976: the International Covenant
on Economic, Social, and Cultural Rights 144 (icescr), and the International
Covenant on Civil and Political Rights 145 (iccpr). Common Article 1 of the
icescr and iccpr provides:
PART I
Article 1
1. All peoples have the right of self-determination. By virtue of that right

they freely determine their political status and freely pursue their
economic, social and cultural development.
2. All peoples may for their own ends, freely dispose of their natural
wealth and resources without prejudice to any obligations arising out
of international economic co-operation, based upon the principle of
mutual benefit, and international law. In no case may a people be de-
prived of its own means of subsistence.
142 Id. at Art. 2.

143 International Convention on the Elimination of All Forms of Racial Discrimination,
unga Res. 2106 (xx) (21 December 1965).
144 International Covenant on Economic, Social, and Cultural Rights, unga Res. 2200A (xxi)
(16 December 1966).
145 International Covenant on Civil and Political Rights, unga Res. 2200A (xxi) (16 Decem-
ber 1966).
32 chapter 1
3. The States Parties to the present Covenant, including those having

responsibility for the administration of Non-Self-Governing and
Trust Territories, shall promote the realization of the right of self-
determination, and shall respect that right, in conformity with the
provisions of the Charter of the United Nations.
The iccpr’s monitoring body, the Human Rights Committee, emphasizes that,
“the right to self-determination is of particular importance because its real-
ization is an essential condition for the effective guarantee and observance
of individual human rights and for the promotion and strengthening of those
rights.”146 Self-determination, a controversial subject in international law, and
one of the main areas of contention in indigenous rights discourse, will be
elaborated on in succeeding sections.
In 1971, the Sub-Commission on the Prevention of Discrimination and Pro-
tection of Minorities (renamed the Sub-Commission on the Promotion and
Protection of Human Rights, and the main subsidiary body of the former Com-
mission on Human Rights) initiated action that specifically had bearing on in-
digenous peoples: it appointed José Martinez Cobo as Special Rapporteur to
study the problem of discrimination against indigenous peoples. The Rappor-
teur’s seminal report, now often referred to as the Martínez Cobo Study, took
over a decade to complete.
Considering that the concept “indigenous” was vague and undefined when
the Special Rapporteur undertook his research, one of the objectives of the
study was to provide a definition of “indigenous populations”, with the admis-
sion that, “indigenous populations themselves have claimed the right to do so
themselves as an exclusive right on their part.”147 Taking this claim into seri-
ous account together with his findings, Martínez Cobo crafted the following
working definition “for purposes of international action that may be taken af-
fecting their future existence”:
379. Indigenous communities, peoples and nations are those which, hav-
ing a historical continuity with pre-invasion and pre-colonial societies
that developed in their territories, consider themselves distinct from oth-
er sectors of the societies now prevailing in those territories, or parts of
146 UN Human Rights Committee, General Comment No. 12: The Right to Self-Determination
of Peoples (Art. 1): 03/13/184 (21st Session, 1984).
147 Un ecosoc, Commission on Human Rights Sub-Commission on the Prevention of Discrim-
ination and Protection of Minorities, Study of the Problem of Discrimination Against Indig-
enous Populations: Final Report (Supplementary Part) submitted by the Special Rapporteur,
Mr. José Martinez Cobo, para. 8, 5, UN Doc. E/CN.4/Sub.2/1982/2/Add.6 (20 June 1982).
them. They form at the present non-dominant sectors of society and are
determined to preserve, develop and transmit to future generations their
ancestral territories, and their ethnic identity, as the basis of their contin-
ued existence as peoples, in accordance with their own cultural patterns,
social institutions and legal systems.148
Additionally, an indigenous person is “one who belongs to these indigenous

populations through self-identification as indigenous (group consciousness)
and is recognized and accepted by these populations as one of its members
(acceptance by the group).”149
These working definitions are characterized by objective and subjective el-
ements. On the one hand, objective elements refer to discrete but intercon-
nected criteria the Special Rapporteur examined, such as ancestry, culture,
language, group consciousness, acceptance by the indigenous community,
residence in certain parts of the country, and legal definitions. On the other
hand, subjective elements pertain to self-identification as indigenous, and the
acceptance of such self-identification by members of the group. The right to
self-identification has become a cornerstone of indigenous rights discourse,
and is at the very core of self-determination.
The Martínez Cobo Study paved the way, not only for increased interna-
tional interest in the plight of indigenous peoples but also for intensified
advocacy by non-governmental organizations (ngo s).150 A mobilized civil
society convened several times in the late 1970s. One of the biggest gather-
ings, the International ngo Conference on Discrimination against Indige-
nous Populations in the Americas, culminated in the adoption of the Draft
Declaration of Principles for the Defense of Indigenous Nations and Peoples
of the Western Hemisphere.151 These milestones were followed by the cre-
ation of the Working Group on Indigenous Populations, the first UN mech-
anism with a mandate exclusively focused on issues relating to indigenous
peoples.152
148 Martínez Cobo Study, Final Report (last part) (hereinafter, Martínez Cobo Study, Conclu-
sions) para. 379, 50, UN Doc. E/CN.4/Sub.2/1983/21/Add.8 (30 September 1983).
149 Id. at para. 381.
150 Hannum, Developments 658.
151 See Rodríguez-Piñero, Indigenous Peoples 263; Hannum, Developments 659–660.
152 UN Office of the High Commissioner for Human Rights (ohchr), un ecosoc Res. 1982/
34, Study on the Problem of Discrimination against Indigenous Populations, 28th plen.
mtg., (7 May 1982).
34 chapter 1
§5 The Ilo’s Indigenous and Tribal Peoples Convention, 1989
Developments in the political milieu, in the discourse on human rights in general,

and on indigenous rights in particular, from the 1960s to the 1980s, precipitated
the clamor for the revision of ilo c107, in repudiation of its integrationist tenor
and objectives.153 The increased participation of ngos – including indigenous
peoples’ organizations – in the debate contributed to the prominence of issues
confronting indigenous peoples and the egregious human rights violations they
suffer.154 The revision of ilo c107 was included in the agenda of the 1988 and 1989
sessions of the International Labor Conference.
Indigenous peoples were accommodated during discussions, as the Confer-
ence Committee recommended all its Member-Governments to consult with
organizations representing indigenous and tribal peoples in preparation for the
76th Session of the Conference. The Committee expressed that it was “essential
that the views of those most directly affected be taken into account in consider-
ing the subject.”155 In an effort to facilitate their participation, the ilo afforded
representatives from indigenous communities observer status, not only in the
Meetings of Experts but also during the revision of the Convention at the 1988
General Conference.156 However, while indigenous representatives participated
in the formulation of the amending convention to some extent, their engage-
ment in the revision process proved inadequate: apart from being excluded from
substantial discussions in the General Conference because attendance was re-
stricted to international ngo s, input from indigenous representatives was large-
ly limited to expressing their opinions.157 Consequently, “[t]he limited extent of
this consultation, and in particular the absence of any participation in the de-
cision on whether to initiate the revision or not, have been described as C169’s
‘original sin’ and significantly influenced its initial credibility among indigenous
peoples.”158 The imputation of lack of meaningful consultation and engagement
with indigenous peoples was particularly problematic, if not ironic, bearing in
mind that consultation and participation were main thrusts of the revisions.
During the 76th International Labour Conference in June 1989, the Gen-
eral Conference adopted the Convention Concerning Indigenous and Tribal
153 Anaya, Indigenous Peoples 56–57; Hannum, Developments 653.

154 Hannum, Developments 658.
155 Ilo, Report iv(1) Partial Revision of the Indigenous and Tribal Populations Convention
1957 (No. 107) [hereinafter, ilo 76th Session Report vi(1)], 2, 76th Session, 1989.
156 Xanthaki, Indigenous Rights 68.
157 Ibid.
158 Doyle, fpic 81.
Peoples in Independent Countries (No. 169), which amended ilo c107. It came
into force on 5 September 1991. While the international indigenous movement
initially opposed ilo c169, it has gradually reversed its position and has, to
some degree, been advocating the ratification of the Convention.
At the time of writing, only 22 countries have ratified ilo c169, 15 of which
are Latin American. This high number of ratifications in the region is unsur-
prising, not only because of the extensive contribution of Latin American
States in the progress of discourse, but also largely due to the committed advo-
cacy of indigenous peoples’ organizations in the region.159
I Shifts in the Paradigm

Like its precursor, ilo c169 contains sections on general policy, land, recruit-
ment and conditions of employment, vocational training, handicrafts and
rural industries, social security and health, education and means of commu-
nication, and administration. It features additional sections on contacts and
co-operation across borders, general, and final provisions. ilo c107 is com-
prised of 37 articles; ilo c169 contains 44. For the most part, unlike its prede-
cessor, ilo c169 values the “distinctive contributions of indigenous and tribal
peoples to the cultural diversity and social and ecological harmony of human-
kind”,160 and engenders an inclusive rather than an integrationist paradigm.
ilo c169 does not provide a definition of “indigenous”. Instead, it gives in-
dicators for ascertaining the groups to which its provisions apply, with self-
identification as the fundamental determining criterion.161
Article 1
1. This Convention applies to:

(a) tribal peoples in independent countries whose social, cultural
and economic conditions distinguish them from other sections
of the national community, and whose status is regulated wholly
or partially by their own customs or traditions or by special laws
or regulations;
(b) peoples in independent countries who are regarded as indig-
enous on account of their descent from the populations which
inhabited their country, or a geographical region to which the
159 S. James Anaya, The Human Rights of Indigenous Peoples: United Nations Developments
(hereinafter, Anaya, UN Developments) 35 U. Haw. L. Rev. 983, 1005 (2003).
160 Ilo C169, Preamble.
161 Id. at Art. 1 (2).
36 chapter 1
country belongs, at the time of conquest or colonisation or the

establishment of present state boundaries and who, irrespective
of their legal status, retain some or all of their own social, eco-
nomic, cultural and political institutions.
Notably, the ilo veered from limiting the application of its conventions to ei-
ther indigenous workers or indigenous populations, and recognized individual
and collective indigenous rights.162 The use of the term “peoples” proved con-
tentious during the negotiations, as it was met strong opposition from Canada
and a number of other States, on account of its association with the even more
controversial right of self-determination.163 The contention was resolved only
through the inclusion of the caveat in Article 1 (3), which states that, “[t]he
use to the term ‘peoples’ shall not be construed as having any implications as
regards rights which may attach to the term under international law”. Through
this proviso, the ilo sidestepped delay in the discussions by effectively consign-
ing the debate on self-determination to the UN.164 However, despite the provi-
so, ilo c169 guarantees a fundamental facet of the right to self-determination:
(1) The peoples concerned shall have the right to decide their own pri-
orities for the process of development as it affects their lives, beliefs,
institutions and spiritual well-being and the lands they occupy or
otherwise use, and 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 eval-
uation of plans and programmes for national and regional develop-
ment which may affect them directly.165
II Consultation and Participation

Article 6 of ilo c169 expresses consultation and participation as the overarch-
ing principle in the application of the provisions of the Convention. According
to the ilo Committee of Experts on the Application of Conventions and Rec-
ommendations, “the establishment of appropriate and effective mechanisms
for the consultation and participation of indigenous and tribal peoples regard-
ing matters that concern them is the cornerstone”166 of ilo c169, and was
162 Anaya, UN Developments 1004.

163 Xanthaki, Indigenous Rights 71.
164 Ibid.
165 Ilo C169, Art. 7(1)
166 International Labour Conference, Report of the Committee of Experts on the Application
of Conventions and Recommendations, Report iii, (Part 1A), 672, 98th session (2009).
fundamental to the abandonment of ilo c107’s integrationist approach.167

Apart from Article 6, provisions in ilo c169 on consultation include Articles 7,
15, 17, as well as 27 and 28, which refer specifically to education; provisions on
participation are Articles 2, 5, 7, and 22.
The inclusion of this two-fold obligation of consultation and participation
was met with resistance, as a number of Member States construed consultation,
particularly with achieving the agreement or consent of the affected peoples as
its objective, as tantamount to granting indigenous and tribal peoples veto pow-
er.168 Unsurprisingly, the Committee of Experts has identified the obligation to
consult as one of the issues that has been raised the most since ilo c169 came
into force. As such, it provided the following interpretation of said obligation:
(1) consultations must be formal, full, and exercised in good faith; there
must be a genuine dialogue between governments and indigenous
and tribal peoples characterized by communication and under-
standing, mutual respect, good faith and the sincere wish to reach
a common accord;
(2) appropriate procedural mechanisms have to be put in place at the
national level and they have to be in a form appropriate to the cir-
cumstances;
(3) consultations have to be undertaken through indigenous and tribal
peoples’ representative institutions as regards legislative and ad-
ministrative measures;
(4) consultations have to be undertaken with the objective for reaching
agreement or consent to the proposed measures.
It is clear from the above that pro forma consultations of mere informa-
tion would not meet the requirements of the Convention. At the same
time, such consultations do not imply a right to veto, nor is the result of
such consultations necessarily the reaching of agreement or consent.169
In 2003, the Constitutional Court of Colombia extensively referred to ilo c169

to resolve allegations by indigenous communities that the Colombian Govern-
ment failed to conduct prior consultation with respect to its Illicit Crop Eradi-
cation Programme that uses aerial spraying in the Amazon region. According to
167 International Labour Conference, Report of the Committee of Experts on the Application
of Conventions and Recommendations, Report iii, (Part 1A) 784 (ILC.100/III/1A).
168 See for example, International Labour Conference, Report iv (2A), Partial Revision of the
Indigenous and Tribal Populations Convention No. 107, 14, 37, 62, 76th session, 1989.
169 Id. at 787–8 (ILC.100/III/1A). Italics in the original.
38 chapter 1
the Constitutional Court, the obligation to consult is not a mere formality and
must be conducted in good faith: the State has the obligation to inform the indig-
enous and tribal peoples of the Colombian Amazon about the content of the Pro-
gramme, the measures that are being implemented in their territories, as well as
its implications, with the objective of obtaining the affected peoples’ consent.170
While the Constitutional Court categorizes prior consultation as a right, it clarifies
that it does not provide indigenous and tribal peoples a right to veto legislative
and administrative measures that affect them. Rather, prior consultation is an
opportunity for the State to consider and evaluate the positions of the peoples
concerned through dialogue, with a view of reaching an agreement.171
In Case of the Kichwa Indigenous Peoples of Sarayaku v. Ecuador 172 decided
by the Inter-American Court of Human Rights (IACtHR), the Sarayaku Peo-
ple challenged Ecuador’s grant of a permit to carry out oil exploration and ex-
ploitation activities in their territory in favor of a private oil company, sans
consultation with them and their consent. Among the rights the IACtHR up-
held were the rights to consultation under Article 2 of the American Conven-
tion on Human Rights, and to communal property, in relation to the right to
cultural identity. According to the IACtHR, the effective participation by the
members of the indigenous community in development or investment plans
within their territory entails the conduct of prior consultation in good faith,
with the objective of reaching an agreement. The consultation process must
be active and informed, accessible and culturally-appropriate, that is, in accor-
dance with the community’s customs and traditional decision-making practic-
es. Moreover, the Court finds support in Article 7(3) of ilo c169, as it empha-
sizes the necessity of an environmental impact assessment that is effectuated
in conformity with international standards and best practices.173
III Land and Indigenous Peoples

Article 13 of ilo c169 provides that, “… governments shall respect the special im-
portance for the cultures and spiritual values of the peoples concerned of their
relationship with the lands and territories, or both as applicable, which they
170 Constitutional Court of Colombia, Judgment SU-383/03 (13 May 2003) in ilo, Application of
Convention No. 169 by Domestic and International Courts in Latin America, 96 (ilo, 2009).
171 Ibid.
172 Case of the Kichwa Indigenous Peoples of Sarayaku v. Ecuador, IACtHR Series C No. 245,
para. 177 (27 June 2012).
173 Id. at para. 204–206. Article 7(3) of ilo C169 provides: “Governments shall ensure that,
whenever possible, studies are carried out, in cooperation with the peoples concerned, to
assess the social, spiritual, cultural and environmental impact on them of planned devel-
opment activities. The results of these studies shall be considered as fundamental criteria
for the implementation of these activities.”
occupy or otherwise use, and in particular the collective aspects of this relation-
ship”. Its substantial departures from the earlier Convention’s section on land are
a product of developments in the ongoing debate on indigenous rights.174
Article 13.1 of ilo c169 expresses an appreciation of the importance of lands
and territories to the cultures and spiritual values of indigenous peoples, as
it obligates States Parties to respect this relationship in the application of
the provisions on land rights. Article 13.2 contemplates a more expansive ap-
proach to indigenous land rights: it includes the concept of territories, which
covers the total environment of the areas indigenous peoples occupy or oth-
erwise use.
Another significant transformation in ilo c169 is the narrow latitude gov-
ernments are allowed in the relocation of indigenous peoples: Article 16 of the
Convention prohibits their relocation, unless it is a necessary and exceptional
measure. Notably, under the new Convention, the interest of national econom-
ic development is no longer sanctioned as a justification for removing and re-
locating indigenous peoples from their lands and territories.
Obtaining the free and informed consent of the concerned indigenous and
tribal peoples is a condition precedent for their relocation. This necessitates
consultation in good faith, provision of clear and accurate information, and
the use of culturally appropriate means, in a language indigenous people un-
derstand, not only for them to appreciate the process and consequences of
relocation, but also to obtain their agreement to it.175 The State must also en-
sure that the indigenous peoples give their consent freely, that is, absent any
fraud, intimidation, manipulation, coercion, or duress. If consent cannot be
obtained, relocation is allowed only after satisfaction of the appropriate proce-
dures established by national laws and regulations, that guarantee the effective
174 In Case of the Yakye Axa Indigenous Community v. Paraguay (hereinafter, Yakye Axa Case),
Inter-Am. Ct. H.R. at para. 127–128 (17 June 2005), the IACtHR found it appropriate to re-
sort to other international treaties, such as the ilo C169 in interpreting the provisions of
the American Convention on Human Rights, taking into account related developments in
International Human Rights Law. It explains –
The corpus juris of international human rights law comprises a set of international
instruments of varied content and juridical effects (treaties, conventions, resolutions
and declarations). Its dynamic evolution has had positive impact on international law
in affirming and building up the latter’s faculty for regulating relations between States
and the human beings within their respective jurisdictions. This Court, therefore, must
adopt the proper approach to consider this question in the context of the evolution
of the fundamental rights of the human person in contemporary international law.
175 Ilo, International Labour Standards Department, Indigenous & Tribal Peoples’ Rights in
Practice, A Guide to ilo Convention No. 169, 98 (ilo, 2009).
40 chapter 1
representation of affected peoples.176 Additionally, Article 16 guarantees the

right of peoples affected to return to their lands, as soon as the grounds for
relocation cease to exist or whenever possible. It prescribes the requirements
that must be fulfilled in the event return is not possible.
In Case of the Yakye Axa Indigenous Community v. Paraguay,177 the IACtHR re-
fers to the provisions of both the American Convention on Human Rights and
ilo c169 in holding Paraguay responsible for providing members of the Yakye
Axa indigenous community with an effective means, buttressed with due process
guarantees, that will allow them to claim their traditional lands as part of their
right to communal property.178 Moreover, the IACtHR, adopting a comprehen-
sive interpretation of the two instruments, ruled that in the event that the return
of displaced indigenous communities is not possible, the selection and delivery
of alternative lands, or the payment of fair compensation, or both, is not solely
within the State’s discretion; rather, there must be a consensus with the peoples
involved, in accordance with their own consultation processes, values, traditions,
and customary law.179 Similarly, in another case, the IACtHR considered ilo c169,
in conjunction with the American Convention and domestic legislation, in find-
ing that the non-enforcement of the Sawhoyamaxa Community’s right to hold ti-
tle to their communal property is detrimental to values that are highly significant
to its members, “who are at risk of losing or suffering irreparable damage to their
lives and identities, and to the cultural heritage of future generations”.180
The relationship indigenous peoples have with their land serves as a leitmo-
tif, and reveals the centrality of land rights in indigenous rights discourse. This
acute relationship with land is not restricted to the individual: it is expressed by
indigenous peoples’ collective use and ownership of their ancestral territories.
In The Mayagna (Sumo) Awas Tingni Community v. Nicaragua,181 the IACtHR
highlighted this profound relationship in this manner:
… Among indigenous peoples there is a communitarian tradition regard-

ing a communal form of collective property of the land, in the sense that
176 Ilo C169. Art. 6(2); ilo International Labour Office, Partial Revision of the Indigenous
and Tribal Populations Convention, 1957 (No. 107), Report vi(1), 117, 75th session (1998).
177 Case of the Yakye Axa Indigenous Community v. Paraguay, IACtHR Series C No. 125,
IACtHR (17 June 2005).
178 Id. at para. 95–96.
179 Id. at para. 150–151.
180 Case of the Sawhoyamaxa Indigenous Community v. Paraguay, IACtHR Series C No. 146,
para. 221–222 (29 March 2006).
181 The Mayagna (Sumo) Awas Tingni Community v. Nicaragua (hereinafter, Mayagna Case),
IACtHR Series C No. 79 (31 August 2001).
ownership of the land is not centered on an individual but rather on the

group and its community. Indigenous groups, by the fact of their very ex-
istence, have the right to live freely in their own territory; the close ties of
indigenous peoples with the land must be recognized and understood as
the fundamental basis of their cultures, their spiritual life, their integrity,
and their economic survival. For indigenous communities, relations to
the land are not merely a matter of possession and production but a ma-
terial and spiritual element which they must fully enjoy, even to preserve
their cultural legacy and transmit it to future generations.182
The inclusion of clauses on the utilization of natural resources is also a prom-

inent feature that ilo c169 does not share with its predecessor. Cognizant
that vast tracts of indigenous territories are rich in natural resources, the new
Convention seeks to safeguard the rights of indigenous peoples to use, man-
age, and conserve these resources. It covers conditions where the State retains
ownership of mineral or sub-surface resources within traditionally-held terri-
tories, a reality for many indigenous peoples across the globe, including those
in the Philippines, where the Regalian doctrine is deeply embedded in the do-
mestic legal system.
§6 The UN Declaration on the Rights of Indigenous Peoples
It took over two decades for the UN General Assembly to craft and adopt the
undrip. It was the product of intense negotiations among Member States,
indigenous peoples, and human rights organizations, facilitated by the UN
Working Group on Indigenous Populations, and subsequently, by the UN Per-
manent Forum of Indigenous Issues. In January 2007, the Assembly of the Af-
rican Union adopted a decision,183 which, among others, expressed concern
regarding the political, social, and constitutional implications of the Draft
Declaration on the Rights of Indigenous Peoples on the African Continent, and
welcomed the deferment of consideration and action on the Draft Declaration
to allow further consultations on matters of fundamental political and consti-
tutional concern. Among these matters are: (a) the definition of indigenous
182 Id. at para. 149.

183 African Union, Assembly, Decision on the United Nations Declaration on the Rights of
Indigenous Peoples, Doc. Assembly/AU/9) (viii) Add.6, Assembly/AU/Dec. 141 (viii) (30
January 2007) available at http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration
.aspx, last accessed 11 September 2016.
42 chapter 1
peoples; (b) self-determination; (c) ownership of land and resources; (d) es-
tablishment of distinct political and economic institutions; and (e) national
and territorial integrity. Seized of these issues, the African Commission on Hu-
man and Peoples’ Rights (African Commission) issued its Advisory Opinion of
the African Commission on Human and Peoples’ Rights on the United Nations
Declaration on the Rights of Indigenous Peoples,184 to respond to the concerns
raised by African States, and facilitate the adoption of the Draft Declaration.
The African Commission elaborated on the provisions of the Draft Declaration
that pertain to the African States’ five areas of concern, and found that they are
in conformity with the African Charter. In its Conclusion, the African Commis-
sion recommended that “African States should promote an African common
position that will inform the United Nations Declaration on the rights of in-
digenous peoples with this African perspective so as to consolidate the overall
consensus achieved by the international community on the issue.”185
The protracted process culminated on 13 September 2007, with 144 UN
Member States voting in favor of adopting the Declaration.186 Only Australia,
Canada, New Zealand and the Unites States voted against it, while 11 States reg-
istered abstentions.187 The four dissenting States have since reversed their po-
sitions: Australia endorsed the Declaration in April 2009 after a change of gov-
ernment. New Zealand, Canada, and the United States followed suit in 2010.188
Moreover, Colombia, the only Latin American country which abstained from
voting, as well as Samoa, have since endorsed the Declaration. These develop-
ments have resulted in a global consensus on the undrip.189
184 African Commission, Advisory Opinion of the African Commission on Human and Peo-
ples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples (here-
inafter, African Commission, Advisory Opinion) (2007) available at http://www.achpr.org/
files/special-mechanisms/indigenous-populations/un_advisory_opinion_idp_eng.pdf,
last accessed 10 March 2016.
185 Id. at para. 44, 11.
186 Un gaor, 61st Session 107th plen. mtg. (hereinafter, GA undrip Voting Record) 10, UN
Doc. A/61/PV.107 (1 November 2002). When the General Assembly voted on the undrip
(then Draft Resolution A/61/L.67), the record of votes in favor was 143; the delegation
of Montenegro, which was absent during the tallying of votes, subsequently advised the
Secretariat that it had intended to vote in favor of the adoption of the draft resolution.
187 Ibid. These States are Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Ken-
ya, Nigeria, Russian Federation, Samoa, and Ukraine.
188 Siegfried Wiessner, Indigenous Self-Determination, Culture, and Land: A Reassessment
in Light of the 2007 UN Declaration on the Rights of Indigenous Peoples (hereinafter, Wiess-
ner, A Reassessment) in Indigenous Rights in the Age of the UN Declaration
31, 40 (Elvira Pulitano, ed., 2012).
189 Id. at 41.
Article 38 of the Statute of the icj identifies the following as sources of inter-
national law: international conventions, whether general or particular, estab-
lishing rules expressly recognized by contesting states; international custom,
as evidence of a general practice accepted by law; and the general principles of
law recognized by civilized nations. Judicial decisions, and the teachings of the
most highly qualified publicists of various nations, while not sources of inter-
national law, are subsidiary means for the determination of rules of law.190 An
international treaty such as ilo c169, is a legally binding instrument – a for-
mal source of law – for the 22 States that ratified it. The undrip does not fall
under any of the enumerated sources of international law: it constitutes soft
law, which is not legally binding but nevertheless reiterates treaty obligations,
and has the potential to affect State behavior.191 Moreover, the overwhelming
adoption by UN Member States of General Assembly Resolution 61/295 that
contains the undrip not only reflects the opinions of governments but can
also constitute “a basis for the progressive development of the law and … for
the speedy consolidation of customary laws.”192 Crawford lists the undrip
as among the “important ‘law-making’ (UN General Assembly) resolutions”.193
At the very least, it is a standard-setting instrument, the legal importance of
which cannot be taken for granted.
The Declaration does not create new or special rights in favor of indige-
nous peoples; rather, it contextualizes established human rights norms to
address the specific circumstances of indigenous peoples, and remedy the
historic injustices they have suffered, and continue to suffer.194 Article 1 of
the undrip is instructive: “Indigenous peoples have the right to the full enjoy-
ment, as a collective or as individuals, of all human rights and fundamental
freedoms as recognized in the Charter of the United Nations, the Universal
Declaration of Human Rights and international human rights law.” The non-
binding character of the undrip does not diminish the binding force of ex-
isting norms that are expressed in international conventions or embodied in
190 Statute of the icj, Art. 38(1)(d).

191 Mauro Barelli, The Role of Soft Law in the International Legal System: The Case of the United
Nations Declaration on the Rights of Indigenous Peoples (hereinafter, Barelli, Soft Law) 58
Int’l & Comp. L. Q. 4, 957, 962 (October 2009), DOI: 10.1017/S0020589309001559.
192 James Crawford, Brownlie’s Principles of Public International Law (here-
inafter, Crawford, International Law) 42 (8th ed., Oxford University Press, 2012).
193 Ibid.
194 UN Human Rights Council, Promotion and Protection of all Human Rights, Civil, Politi-
cal, Economic, Social and Cultural Rights, Including the Right to Development, Report of
the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of
Indigenous People, S. James Anaya (hereinafter, srrip Report 2008) para. 86, 24, UN Doc.
A/HRC/9/9 (11 August 2008).
44 chapter 1
other sources of international law.195 The undrip’s provisions on equality and

non-discrimination196 are grounded on prevailing international human rights
instruments, including the udhr, the icerd, the iccpr, and the icescr. A de-
cade prior to the adoption of the undrip, the cerd issued General Recom-
mendation 23 on the rights indigenous peoples,197 in which it calls upon States
Parties 198 to the icerd to –
(a) Recognize and respect indigenous distinct culture, history, language

and way of life as an enrichment of the State’s cultural identity and to
promote its preservation;
(b) Ensure that members of indigenous peoples are free and equal in dig-
nity and rights and free from any discrimination, in particular, that
based on indigenous origin or identity;
(c) Provide indigenous peoples with conditions allowing for sustainable
economicand social development compatible with their cultural
characteristics;
(d) Ensure that members of indigenous peoples have equal rights in re-
spect of effective participation in public life and that no decisions
directly relating to their rights and interests are taken without their
informed consent;
(e) Ensure that indigenous communities can exercise their rights to prac-
tice and revitalize their cultural traditions and customs and to pre-
serve and practise their languages.
As summarized by the srrip:
85. The United Nations Declaration on the Rights of Indigenous Peoples

represents an authoritative common understanding, at a global level, of the
195 Barelli, Soft Law 962.

196 Article 2 of the undrip states: “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 discrimi-
nation, in the exercise of their rights, in particular that based on their indigenous origin or
identity.” Additionally, Art. 15(2) provides: “States shall take effective measures, in consul-
tation and cooperation with the indigenous peoples concerned, to combat prejudice and
eliminate discrimination and to promote tolerance, understanding and good relations
among indigenous peoples and all other segments of society.”
197 UN ohchr, cerd, General Recommendation xxiii: Indigenous Peoples, para. 4, 51st Ses-
sion, UN Doc. A/52/18, Annex v (18 September 1997), reprinted in Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN
Doc. HRI/GEN/1/Rev.6 at 212 (2003).
198 At the time of writing, the icerd has 178 States Parties.
minimum content of the rights of indigenous peoples, upon a foundation

of various sources of international human rights law. The product of a pro-
tracted drafting process involving demands voiced by indigenous peoples
themselves, the Declaration reflects and builds upon human rights norms
of general applicability, as interpreted and applied by United Nations and
regional treaty bodies, as well as on the standards advanced by ilo Conven-
tion No. 169 and other relevant instruments and processes.199
Moreover, as will be demonstrated later in this Chapter, the IACtHR, and the
African Commission, which had expressed support for the adoption of the
Draft Declaration, have cited the undrip in their respective Decisions and
Recommendations.
I Individual and Collective Rights

The enjoyment by indigenous peoples of their rights, not only as individuals,
but also as a collective, is a constant theme in the undrip. The recognition of
collective rights goes to the very essence of indigenous peoples’ distinct iden-
tity and cultural integrity, both of which are safeguarded by the undrip.200
According to the Human Rights Committee, indigenous peoples’ use of land
resources is an exercise of their cultural rights:
With regard to the exercise of the cultural rights protected under article
27, the Committee observes that culture manifests itself in many forms,
including a particular way of life associated with the use of land resources,
especially in the case of indigenous peoples. That right may include such
traditional activities as fishing or hunting and the right to live in reserves
protected by law. The enjoyment of those rights may require positive legal
measures of protection and measures to ensure the effective participation
of members of minority communities in decisions which affect them.201
The case of Centre for Minority Rights Development (Kenya) and Minority Rights
Group International on behalf of Endorois Welfare Council v. Kenya,202 is an im-
portant victory for the Endorois, who were evicted from their ancestral lands
199 Srrip Report 2008 at para. 85, 24.

200 See Articles 5, 8(1), 8(2), 9, 11, 14, 15, 31, and 34 of the undrip.
201 UN ohchr, 50th Session, Human Rights Committee, General Comment No. 23, The
Rights of Minorities (Art. 27), UN Doc. CCPR/C/21/Rev.1/Add.5 (1994).
202 Centre for Minority Rights Development (Kenya) and Minority Rights Group Internation-
al on behalf of Endorois Welfare Council v. Kenya (hereinafter, Endorois v. Kenya), 276/
2003 (achpr, 24 February 2010).
46 chapter 1
surrounding Lake Bogoria in the 1970s to accommodate tourism development and

ruby mining in the area. The Endorois did not have any document title to evidence
their ownership of the territories in question despite their occupation and utiliza-
tion thereof since time immemorial. The African Commission, which referred to
the undrip a number of times in its Recommendations in the Communications,
found that, the “Endorois are a ‘people’, a status that entitles them to benefit from
the provisions of the African Charter that protect collective rights”.203 Moreover,
the African Commission sanctioned positive discrimination or affirmative action
in certain cases to help redress the imbalance resulting from historical wrongs,
many of which continue to this day. It explains: “Besides, it is a well-established
principle of international law that unequal treatment towards persons in un-
equal situations does not necessarily amount to impermissible discrimination.
Legislation that recognises said differences is therefore not necessarily discrimi-
natory”.204 The African Commission finds support from the jurisprudence of the
IACtHR, which holds that, “[s]pecial measures of protection are owed to members
of the tribal community to guarantee the full exercise of their rights”.205
In Endorois v. Kenya, the African Commission acknowledges the undrip’s
extensive treatment of indigenous land rights and confirms that it officially en-
dorsed the adoption of the Draft Declaration in its 2007 Advisory Opinion.206
It cites Articles 26 and 27 of the undrip to “stress that indigenous peoples
have a recognized claim to ownership of ancestral land under international
law, even in the absence of official title deeds”, and found further justification
in the Decisions of the IACtHR. The African Commission concludes that, “tra-
ditional possession of land by indigenous people has the equivalent effect as
that of a state-granted full property title.”207
In Saramaka,208 the IACtHR refers to Article 21 of the American
Convention,209 common Article 1 of the iccpr and the iescsr,210 as well as
203 Id. at para. 162.

204 Id. at 196.
205 Ibid.
206 Id. at 204. See African Commission, Advisory Opinion.
207 Endorois v. Kenya at para. 209.
208 Case of the Saramaka People v. Suriname, IACtHR Series C, No. 185, para. 85 (28 November
2007).
209 Article 21 of the American Convention on Human Rights states: “Article 21. Right to Prop-
erty. Everyone has the right to the use and enjoyment of his property. The law may subor-
dinate such use and enjoyment to the interest of society. No one shall be deprived of his
property except upon payment of just compensation, for reasons of public utility or social
interest, and in cases and according to the forms established by law.”
Usury and any other form of exploitation of man by man shall be prohibited by law.
210 Suriname acceded to the iccpr and icescsr on 28 December 1976.
Article 27 of the iccpr 211 as bases for recognizing the right of the Saramaka
people to
the communal territory they have traditionally used and occupied, de-
rived from their longstanding use and occupation of the land and re-
sources necessary for their physical and cultural survival, and that the
State has an obligation to adopt special measures to recognize, respect,
protect and guarantee the communal property right of the members of
the Saramaka community to said territory.212
Kuna Indigenous People of Madungandi and Embrera Indigenous People of

Bayano and their Members v. Panama 213 emphasizes that the abstract recog-
nition of the right to community property of indigenous and tribal peoples is
insufficient, as States must adopt concrete measures to ensure its observance.
According to the Inter-American Commission on Human Rights (iachr), the
physical delimitation, demarcation, and collective titling of ancestral territo-
ries is necessary to establish that the occupation and use by indigenous peo-
ples of their lands is based neither on privilege nor the tolerance 214 and altru-
ism of the State, but on their rights to property, as protected by international
human rights law, and if States were to fulfill their obligations thereunder, by
domestic legislation. Additionally, the right of indigenous peoples to use and
enjoy their territory is inextricably linked to the use and enjoyment of natural
resources on and within their territories: “… the demand for collective land
ownership by members of indigenous and tribal peoples derives from the need
to ensure the security and permanence of their control and use of the natural
resources, which in turn maintains their very way of life.”215
II Self-Determination
The right to self-determination is the foundation of the exercise by indigenous
peoples of their individual and collective rights. It is expressed in Article 3 of
211 In paragraph 94, the IACtHR explains that, Similarly, the Human Rights Committee has
analyzed the obligations of State Parties to the iccpr under Article 27 of such instrument,
including Suriname, and observed that ‘minorities shall not be denied the right, in commu-
nity with the other members of their group, to enjoy their own culture [,which] may con-
sist in a way of life which is closely associated with territory and use of its resources. This
may particularly be true of members of indigenous communities instituting a minority.’
212 Id. at para. 95–96.
213 Kuna Indigenous People of Madungandi and Embrera Indigenous People of Bayano and
their Members v. Panama, Case 12.354, iachr. Report No. 125/12, para. 227 (2012).
214 Saramaka v. Suriname para. 115.
215 Id. at para. 122.
48 chapter 1
the undrip, which reflects the language of common Article 1 of the iccpr and
the icescr. However, unlike common Article 1, which refers to “all peoples”,
Article 3 of the undrip specifies that, “[i]ndigenous peoples have the right
to self-determination”. Adjunct to this integral right is the right of peoples to
freely determine their political status and freely pursue their economic, social,
and cultural development.
Even as respect for the right to self-determination is embodied in the UN
Charter, the iccpr, and the icescr, it remains a widely-contested issue in in-
ternational law, particularly in the context of the sovereignty and territorial
integrity of the State. In contemporary rights discourse, however, the right to
self-determination for most indigenous peoples does not involve secession or
external self-determination, but rather, internal self-determination: “the right
to self-management within the structure of the existing host state”.216 Profes-
sor Erica- Irene A. Daes, former Chairperson of the UN Working Group on
Indigenous Rights, explains –
Furthermore, the right of self-determination of indigenous peoples

should ordinarily be interpreted as their right to negotiate freely their sta-
tus and representation in the State in which they live. This might best be
described as a kind of “belated State-building”, through which indigenous
peoples are able to join with all the other peoples that make up the State
on mutually-agreed and just terms, after many years of isolation and ex-
clusion. This does not mean the assimilation of indigenous individuals as
citizens like all others, but the recognition and incorporation of distinct
peoples in the fabric of the State, on agreed terms.217
Indigenous peoples’ right to self-government in matters relating to their in-

ternal and local affairs is an expression of the right to self-determination. In-
deed, indigenous peoples consider the right to self-determination as “a precon-
dition for the realization of all other human rights, and must be considered
the bedrock that ensures their self-governance, whereby they can participate
216 Jeff J. Corntassel and Tomas Hopkins Primeau, Indigenous “Sovereignty” and Internation-
al Law: Revised Strategies for Pursuing “Self-Determination” 17 Hum. Rts. Q. 2, 343, 362
(May 1995).
217 un ecosoc, Commission on Human Rights, Sub-Commission on Prevention of Discrim-
ination and Protection of Minorities, Discrimination Against Indigenous Peoples, Explan-
atory Note Concerning the Draft Declaration on the Rights of Indigenous Peoples, Erica-
Irene A. Daes, Chairperson of the Working Group on Indigenous Populations, para. 26, 5,
UN Doc. E/CN.4/Sub.2/1993/26/Add.1 (19 July 1993).
in decision-making processes in policies that directly affect them”.218 That

the right to self-determination is intrinsically linked with various rights – in-
cluding the right of indigenous peoples to strengthen their distinct political,
economic, social, and cultural institutions,219 and the right to determine their
priorities and strategies for the development or use of their land and resourc-
es220 – is testament to the indivisibility, interdependence, and interrelatedness
of human rights. The denial of one right negates the enjoyment of others. Con-
sequently, the adoption and implementation of legislative or administrative
measures that may affect indigenous peoples, as well as the approval of any
project affecting their lands and resources, requires not only the State’s consul-
tation and cooperation in good faith with the indigenous peoples concerned,
but also their fpic.221
III Free, Prior, and Informed Consent

fpic is necessary to the exercise of the right to self-determination. At least six
provisions in the undrip pertain to fpic: Articles 10, 19, 29, and 32(2) require
State consultation with indigenous peoples concerned to obtain their fpic
preceding action that will affect them; Articles 11(2) and 28 provide for redress
for the taking of their property without their fpic. The structure of Articles 10
and 29 are similar: respectively, these articles prohibit the relocation of indig-
enous peoples, and the storage or disposal of hazardous materials in the lands
and territories of indigenous peoples, absent their fpic. Articles 19 and 32(2)
are likewise comparable, as both require the State to consult and cooperate
in good faith with indigenous peoples concerned though their representative
institutions, in order to obtain their fpic before (a) adopting and implement-
ing legislative or administrative measures that may affect them under Article
19; and (b) approving any project affecting their lands or territories and other
resources under Article 32(2). While both Articles 11(2) and 28 require redress,
which may include restitution, the former pertains to indigenous peoples’ cul-
tural, intellectual, religious and spiritual property taken without their fpic
or in violation of their laws, traditions and customs. It prescribes additional
conditions: that redress be provided through effective mechanisms developed
in conjunction with indigenous peoples. Article 28, on the other hand, covers
lands, territories and resources indigenous peoples have traditionally owned
or otherwise occupied or used, which have been confiscated, taken, occupied
218 Srrip Report 2003 at para. 12, 7.

219 Undrip, Art. 5; 20.
220 Undrip, Art. 32.
221 Undrip, Art. 19; 32.
50 chapter 1
used or damaged without their fpic. Moreover, if restitution is not possible,

it allows the provision of just, fair, and equitable compensation; unless other-
wise freely agreed upon by the peoples concerned, such compensation shall
be in the form of lands, territories, and resources equal in quality, size, and
legal status, or of monetary compensation or other appropriate redress.
The International Workshop of Methodologies regarding Free, Prior and In-
formed Consent and Indigenous Peoples attended by experts, observers from
the UN system and other intergovernmental organizations, Governments,
and indigenous organizations in 2005, expounded on the elements of fpic as
follows:
Free should imply no coercion, intimidation or manipulation.
Prior should imply that consent has been sought sufficiently in advance
of any authorization or commencement of activities and that respect is
shown for time requirements of indigenous consultation/consensus pro-
cesses.
Informed should imply that information is provided that covers (at least)
the following aspects:
a. The nature, size, pace, reversibility and scope of any proposed project
or activity;
b. The reason(s) for or purpose(s) of the project and/or activity;
c. The duration of the above;
d. The locality of areas that will be affected;
e. A preliminary assessment of the likely economic, social, cultural and
environmental impact, including potential risks and fair and equitable
benefit-sharing in a context that respects the precautionary principle;
f. Personnel likely to be involved in the execution of the proposed proj-
ect (including indigenous people, private sector staff, research institu-
tions, government employees and others);
g. Procedures that the project may entail.222
Consent
Consultation and participation are crucial components of a consent pro-
cess. Consultation should be undertaken in good faith. The parties should
222 Un ecosoc, Permanent Forum on Indigenous Issues, Report of the International Work-
shop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peo-
ples (New York, 17–19 January 2005) 12, UN Doc. E/C.19/2005/3.
establish a dialogue allowing them to find appropriate solutions in an at-

mosphere of mutual respect in good faith, and full and equitable participa-
tion. Consultation requires time and an effective system for communicating
among interest-holders. Indigenous peoples should be able to participate
through their own freely chosen representatives and customary or other in-
stitutions. The inclusion of a gender perspective and participation of indig-
enous women are essential, as well as participation of children and youth,
as appropriate. This process may include the option of withholding consent.
Consent to any agreement should be interpreted as indigenous peoples
have reasonably understood it.
The determination of the representative institutions that are entitled to ex-

press consent on behalf of the affected peoples and communities is also an
important element of the fpic process. This requirement is clear in Articles 18,
19, 30, and 32 of the undrip.
UN Treaty Bodies and Special Procedures have considered the fpic require-
ment, preceding and subsequent to the adoption of the undrip. The Human
Rights Committee considers the absence of consultation to seek affected in-
digenous communities’ fpic to the exploitation of natural resources in their
territories as a source of concern in relation to Article 27 of the iccpr.223 As
such, it directs States to consult with indigenous communities prior to grant-
ing concessions for the economic exploitation of the lands in which they live.
The cescr’s General Comment No. 21 prescribes as a core obligation under
Article 15, para. 1(a) of the icescr, the requirement to obtain the fpic of in-
digenous peoples, when laws and policies jeopardize the preservation of their
223 UN Human Rights Committee, Concluding Observations of the Human Rights Commit-
tee, Consideration of Reports Submitted by States Parties under Article 40 of the Cove-
nant (Panama) (hereinafter, Human Rights Committee, Concluding Observations-Panama)
para. 21, UN Doc. CCPR/C/PAN/CO/3 (17 April 2008); Concluding Observations of the
Human Rights Committee, Consideration of Reports Submitted by States Parties under
Article 40 of the Covenant (Nicaragua) para. 21, UN Doc. CCPR/C/NIC/CO/3 (12 Decem-
ber 2008). Article 27 of the iccpr provides: “In those States in which ethnic, religious or
linguistic minorities exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of the group, to enjoy their own culture, to
profess and practise their own religion, or to use their own language.” Note that Article
27 is a right that is conferred to individuals who belong to minority groups. Indigenous
individuals comprising a peoples who are minorities in the States they inhabit are enti-
tled to the protections guaranteed by Article 27. However, not all minorities constitute
indigenous peoples, and only the latter enjoy the right to self-determination. See UN Hu-
man Rights Committee, General Comment No. 23, General Comment Adopted by the
Human Rights Committee under Article 40, Paragraph 4, of the International Covenant on
52 chapter 1
cultural resources, particularly those associated with their way of life and
cultural expression.224 Moreover, the cerd, in its General Recommendation
xxiii, urges State Parties to the icerd to ensure that no decision directly re-
lating to the rights and interests of indigenous peoples are taken without their
informed consent.225 It considers that the use or appropriation of indigenous
peoples’ lands and territories without their free and informed consent neces-
sitates restitution, and in the event this is not possible, just, fair and prompt
compensation.226
Significantly, the Human Rights Committee has referred to fpic as a right
that the State should ensure indigenous peoples are able to exercise.227 Simi-
larly, the cescr refers to fpic as a right in its Concluding Observations on the
Fifth Periodic Report of Colombia. It recommends the State’s adoption of leg-
islation – in consultation with, and with the participation of indigenous and
Afro-Colombian people – that clearly establishes the right to fpic, relative to
processes concerning infrastructure, development and mining projects.228 The
cerd has likewise recognized the right of affected indigenous communities to
fpic, particularly in light of Peru’s ratification of ILO C169.229
In 2003, the Special Rapporteur on the situation of human rights and funda-
mental freedoms of indigenous peoples 230 stated that, “[s]ustainable develop-
ment is essential for the survival and future of indigenous peoples, whose right to
Civil and Political Rights (hereinafter, ccpr, General Comment No. 23), para. 1; 3.1, UN Doc.
CCPT/C/21/Rev.1/Add.5 (26 April 1994). See also, UN Human Rights Committee, Länsman,
et al. v. Finland, Communication No. 511/1992, UN Doc. CCPR/C/52/D/511/1992 (26 Octo-
ber 1994); UN Human Rights Committee, Poma Poma v. Peru, Communication No. 1457/
2006, UN Doc. CCPR/C/95/D/1457/2006 (24 April 2009).
224 Un ecosoc, cescr, General Comment No. 21, Right of Everyone to Take Part in Cultural
Life (Art. 15, para. 1(a), of the International Covenant on Economic, Social and Cultural
Rights, para. 55 (e), UN Doc. E/C.12/GC/21 (21 December 2009).
225 Un cerd, General Recommendation xxiii, Rights of Indigenous Peoples (Fifty-first ses-
sion (1997), U.N. Doc. A/52/18, annex v at 122 (1997), reprinted in Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies, 213,
UN Doc. HRI/GEN/1/Rev.6 (12 May 2003).
226 Ibid.
227 UN Human Rights Committee, Consideration of Reports Submitted by States Parties un-
der Article 40 of the Covenant, Concluding Observations of the Human Rights Commit-
tee (Togo), UN Doc. CCPR/C/TGO/CO/4, para. 21 (18 April 2011).
228 Un ecosoc, cerd, Consideration of Reports Submitted by States Parties under Articles
16 and 17 of the Covenant, Concluding Observations of the Committee on Economic, So-
cial and Cultural Rights (Colombia), UN Doc. E/C.12/COL/CO/5, para. 9 (21 May 2010).
229 Cerd, Early Warning Urgent Action Letter to Peru, dated 2 September 2011. See also,
Doyle, fpic 132.
230 This special procedure was later renamed as Special Rapporteur on the Rights of Indige-
nous Peoples.
development means the right to determine their own pace of change, consistent
with their own vision of development, including their right to say no”.231
The Norwegian National Contact Point (ncp) for the oecd (Organisation
for Economic and Co-operation and Development) Guidelines for Multina-
tional Enterprises (oecd Guidelines) provides practical insights on the re-
quirements of fpic in its resolution of a complaint filed against a Norwegian
mining company concerning consultations and fpic processes conducted for
its Mindoro Nickel Project in the Philippines.232 The npc considered the issues
of representation, as well as the timeliness and sufficiency of the information
presented to affected indigenous communities. The complaint alleges, among
others, that the consultations that were conducted to obtain the fpic of the
indigenous communities were flawed, on account that the organizations that
participated in them did not represent peoples from areas directly affected by
the project. As regards sufficiency of information, the complaint asserts that
the severe risk of environmental damage accompanying the project was not
adequately communicated to the concerned indigenous communities.
In examining the complaint, the ncp refers to, inter alia, Article 32.2 of the un-
drip, Article 6.1 (a) of ILO C169,233 the oecd Guidelines, International Finance
Corporation Standard 7 (on indigenous peoples), and the Indigenous Peoples’
Rights Act of 1997 (ipra).234 It finds that since there was uncertainty with regard to
the representation of the concerned indigenous communities in the consultation
and fpic processes, the company should have systematically investigated whether
(a) groups other than the ones that issued the fpic could be impacted by its proj-
ect components; and that (b) the groups they consulted were the legitimate rep-
resentatives of all the affected peoples.235 The ncp, citing Chapter ii of the oedc
Guidelines, adopts a broad and inclusive approach to who should be consulted:
The indigenous peoples understood as “affected” include not only those

that inhabit the land, but also those who use it according to their tradi-
tion and culture. The ncp understands the term “affected” as referring
231 Srrip Report 2003 at para. 66. Italics supplied.

232 Norwegian ncp for the oecd Guidelines for Multinational Enterprises, Final Statement,
Complaint from The Future in Our Hands (fioh) against Intex Resources asa and the Min-
doro Nickel Project (hereinafter, Norwegian ncp, Mindoro Nickel Project) 14 (November 2011).
233 Norway ratified ilo C169 in 1990.
234 Congress of the Philippines, Republic Act No. 8371, An Act to Recognize, Protect and
Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples, Creating
a National Commission on Indigenous Peoples, Establishing Mechanisms, Appropriating
Funds Therefor, and for Other Purposes (29 October 1997).
235 Norwegian ncp, Mindoro Nickel Project 25.
54 chapter 1
to all affected indigenous peoples, and not only a fraction of the group
or tribe, or those inhabiting the land who may be forced to relocate due
to the project or related infrastructure. It would be contrary to the in-
tention of instruments designed to protect indigenous peoples or tribes
to allow a fraction of the group without individually based property
rights, to enter into agreements affecting the tribe without consulting
the tribe in its entirety. The effect of this may be that members of the
tribe become unable to use the land according to tribal customs.236
As regards the allegations on the insufficiency of information provided to the

indigenous communities, the ncp finds that the company failed to provide ad-
equate and timely information on the environmental, social, health and safety
impacts of the project. The Environmental Impact Assessment (eia) had not
been made readily accessible to the stakeholders, and was not translated into
local languages. Moreover, the npc holds that the consent by the indigenous
peoples the company consulted was not sufficiently informed because it was
given before the completion of the eia and the project design.
The jurisprudence of the Inter-American System is instructive on the cogni-
zance and practice of fpic in the region. In a case decided in 2002, the iachr
cites Articles xviii and xxii of the American Declaration of the Rights and
Duties of Man 237 to warrant the requirement for a process of fully informed
and mutual consent of the indigenous community as a whole in the determi-
nation of the extent of indigenous claimants’ interests in lands that they have
traditionally used and occupied.238 According to the iachr, “[t]his requires at
a minimum that all the members of the community are fully and accurately
informed of the nature and consequences of the process and provided with an
effective opportunity to participate individually or as collectives”.239
In Case of the Saramaka People v. Suriname,240 the IACtHR acknowledges that
Article 21 of the American Convention on Human Rights should not be interpreted
to prevent the State from granting any type of concession for the exploration and
236 Id. at 23.

237 Organization of American States, American Declaration of the Rights and Duties of Man,
9th International Conference of American States, 1948, available at https://www.cidh.oas
.org/Basicos/English/Basic2.American%20Declaration.htm, last accessed 14 July 2016.
238 Dann v. United States, Case 11.140, Inter-Am. C.H.R., Report No. 75/02, Doc. 5 rev. 1 at 860
para. 140 (2002).
239 Ibid.
240 Saramaka v. Suriname para. 126. See also, Case of the Saramaka People v. Suriname (In-
terpretation of the Judgment on Preliminary Objections, Merits, Reparations and Costs),
IACtHR Series C, No. 185 (12 August 2008).
extraction of natural resources within Saramaka territory. Citing jurisprudence,

the IACtHR explains that the State is allowed to restrict the use and enjoyment
of property, provided that these restrictions are “a) previously established by law;
b) necessary; c) proportional, and d) with the aim of achieving a legitimate ob-
jective in a democratic society”.241 Nevertheless, the requisite consultation must
be understood to include the fpic of indigenous peoples when there is a major
development or investments plan that may have a profound impact on their prop-
erty rights.242 The Court directed Suriname to adopt measures that recognize and
ensure the right of the Saramaka people to be consulted in accordance with their
traditions and customs, or when necessary, the right to give or withhold their fpic
relative to development or investment projects that may affect their territory.243
Citing Article 32 of the undrip in interpreting Article 1(1) of the American Con-
vention on Human Rights, the IACtHR prescribes the following safeguards:
First, the State must ensure the effective participation of the members of
the Saramaka people, in conformity with their customs and traditions re-
garding any development, investment, exploration or extraction plan …
within Saramaka territory. Second, the State must guarantee that the
Saramakas will receive a reasonable benefit from any such plan within
their territory. Third, the State must ensure that no concession will be
issued within Saramaka territory unless and until independent and tech-
nically capable entities, with the State’s supervision, perform a prior envi-
ronmental and social impact assessment. These safeguards are intended
to preserve, protect and guarantee the special relationship that the mem-
bers of the Saramaka community have with their territory, which in turn
ensures their survival as a tribal people.244
In Case of Kaliña and Lokono Peoples v. Suriname,245 the IACtHR extensively cites
the Saramaka case and made references to the undrip, particularly in resolving
issues on the rights of indigenous peoples to communal property, to participate in
decision-making matters that would affect their rights, and to consultation prior to
State approval of any project affecting their lands, territories, and other resources.
One of the grounds that the United States, Australia, Canada, and New Zea-
land raised in their initial rejection of the undrip was indigenous peoples’ veto
241 Saramaka v. Suriname at para. 127.

242 Id. at para. 134; 137.
243 Id. at para. 194.
244 Id. at para. 129.
245 Case of Kaliña and Lokono Peoples v. Suriname, IACtHR Series C, No. 309 (25 November 2015).
56 chapter 1
power over a democratic legislature and national resource management, which

the Declaration was perceived to guarantee by virtue of the fpic requirement.246
The four objector States’ veto power argument was not new: it was raised in rela-
tion to Articles 6 and 7 of ILO C169.247 The International Labour Office has clari-
fied that although the right to be consulted, and to participate in decision-making
processes remains the cornerstone of ILO C169,248 it has also categorically stated
that the “Convention does not provide indigenous peoples with a veto right, as
obtaining the agreement or consent is the purpose of engaging in the consulta-
tion process, and is not an independent requirement”.249 Nevertheless, there is
an ongoing polarizing debate on the veto-or-no veto issue in the context of the
requirement for fpic under the undrip. However, arguments have been raised
to veer the discourse from the veto dissension, to the protection, respect, and
fulfillment of indigenous rights within the normative framework of internation-
al human rights law in interpreting the fpic requirement.250 The srrip suggests
that “neither consultation nor consent is an end in itself, nor are consultation and
consent stand-alone rights”.251 He explains that, “principles of consultation and
consent together constitute a special standard that safeguards and functions as a
means for the exercise of indigenous peoples’ substantive rights.”252
§7 Conclusion
The impacts of colonialism are staggering and persistent: it changed the world
and shaped the development of international law. Colonialism’s consequences
endure in the 21st century, particularly in relation to the lives, rights, and so-
cieties of indigenous peoples. Indeed, “[p]overty amidst indigenous peoples
246 GA undrip Voting Record 11–14.

247 Doyle, fpic 85–86.
248 Ilo, International Labour Standards Department, Understanding the Indigenous and
Tribal Peoples Convention, 1989 (No. 169), Handbook for ilo Tripartite Constituents
(hereinafter, ilo, Understanding ilo C169) 12 (2013).
249 Id. at 12; ilo, International Labour Standards Department, Indigenous & Tribal Peoples’
Rights in Practice, A Guide to ilo C169 (hereinafter, ilo, Rights in Practice) 59 (2009).
250 See Tara Ward, The Right to Free, Prior, and Informed Consent: Indigenous Peoples’ Participa-
tion Rights within International Law (hereinafter, Ward, fpic) 10 Nw. J. Int’l Hum. Rts.
2, 54, 84 (2011); Mauro Barelli, Free, Prior and Informed Consent in the Aftermath of the UN
Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead (here-
inafter, Barelli, fpic) 16 Int’l J. Hum. Rts. 1, 1, 11 ( January 2012); Doyle, fpic 126 et seq.
251 UN Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous
Peoples, James Anaya, para. 49, 13, A/HRC/21/47 (6 July 2012).
252 Ibid.
finds its roots in colonization, the destruction of indigenous economic and

socio-political systems, continuing systemic racism and discrimination, social
exclusion, and the non-recognition of indigenous peoples’ individual and col-
lective rights”. Moreover, according to Professor Daes –
66. The legacy of colonialism is probably most acute in the area of expro-
priation of indigenous lands, territories and resources for national eco-
nomic and development interests. In every part of the globe, indigenous
peoples are being impeded from proceeding with their own forms of de-
velopment consistent with their own values, perspectives and interests.
The concentration of extensive legal, political and economic power in
the State has contributed to the problem of development and indigenous
peoples’ rights to lands, territories and resources.253
The contemporary normative framework on indigenous rights is a product of

centuries of evolution. Indeed, it is a substantial deviation from its progenitor,
which created, inter alia, the legal fiction of terra nullius to justify colonial-
ization, and institutionalized the denial of the basic humanity and dignity of
indigenous peoples. The exercise by indigenous peoples of their substantive
rights, particularly the foundational right to self-determination, has been a
constant struggle, since the time of colonization until the present.
Nevertheless, there appears to be no sense of urgency among States to right
historical wrongs: ilo c169 remains poorly ratified, and the adoption of the
undrip, a non-binding instrument despite being grounded on existing inter-
national human rights law, took over two decades.
In any case, the amendment of the ilo c107 by ilo c169, its ratification by
several States, and the global adoption of the undrip are substantial strides
towards the recognition, respect, protection, and fulfillment of indigenous
rights. The impetus to mainstream indigenous rights finds support in the ref-
erences and acquiescence to these instruments by UN treaty bodies and Spe-
cial Procedures; by regional and domestic judicial and quasi-judicial bodies
in their comments, recommendations, and decisions; as well as by domestic
legislation, and international organizations in their prescribed standards and
compliance mechanisms.
The significance of the twin requirements of consultation and fpic to the pro-
tection of substantive rights has been evident from as far back to the execution
253 Un ecosoc, Commission on Human Rights, Prevention of Discrimination and Protec-

tion of Indigenous Peoples and Minorities, Indigenous Peoples and Their Relationship to
Land, Final Working Paper Prepared by the Special Rapporteur, Mrs. Erica-Irene A. Daes,
21, UN Doc. E/CN.4/Sub.2/2001/21 (11 June 2001).
58 chapter 1
of treaties and agreements between the ancestors of today’s indigenous peo-

ples and their colonizers. The lack or absence of consultation in good faith with
indigenous peoples then, coupled with their vitiated consent, resulted in the
relinquishment of their very attributes of statehood, as asserted by their non-
indigenous counterparties, and as justified and legitimized by international law.
ilo c169 and the undrip, both remedial instruments, express the right to con-
sultation, which is a right in itself, and also means by which substantive rights
of indigenous peoples are realized. In Kichwa, the AICtHR held that the respect
for the right to consultation is “precisely the recognition of their rights to their
own culture or cultural identity …”254 Since the right to consultation is a means
of safeguarding substantive rights, the violation thereof resulted in the violation
of the rights of the Kichwa Indigenous Peoples of Sarayaku to their communal
property, and to cultural identity.
While the legal status of fpic – whether or not it is a right – is the subject of
ongoing debate, its importance in protecting substantive indigenous rights cannot
be taken for granted. Thus, in Saramaka, the IACtHR, finding support from consid-
erations by the srrip and other international bodies, recognized the State duty to
obtain the fpic of the affected indigenous peoples as a condition precedent for
the implementation of large-scale development or investment projects that would
have a major impact on their territory.255 The African Commission echoes this in
the groundbreaking case, Endorois v. Kenya.256 In Maya Indigenous Communities of
the Toledo District v. Belize,257 the IACtHR concluded that in granting third parties
logging and oil concessions in lands that are traditionally held and used by the
Maya People without effective consultations and their informed consent, the State
violated their right to property enshrined in the American Declaration.
A number of cases decided by regional mechanisms cited in this Chapter
elaborate on the involvement of non-State actors – business enterprises – to
which concessions were granted by States,258 although they do not make con-
clusions regarding the responsibility of business enterprises to respect human
rights in general, and indigenous rights in particular. This responsibility is pre-
sented in the succeeding Chapters, where it is demonstrated that the ungp s
can be used in mainstreaming indigenous land rights.
254 Case of the Kichwa Indigenous Peoples of Sarayaku v. Ecuador at para. 158, 39.
255 Case of the Saramaka People v. Suriname at para. 134, 40.
256 Endorois v. Kenya at para. 291, 77.
257 Case 12.053, iachr Report No. 40/04, para. 194 (2004).
258 See Case of Kaliña and Lokono Peoples v. Suriname; Case of the Kichwa Indigenous
Peoples of Sarayaku v. Ecuador; Case of the Saramaka People v. Suriname; The Mayagna
(Sumo) Awas Tingni Community v. Nicaragua; Maya Indigenous Community of the Tole-
do District v. Belize; Endorois v. Kenya.

Indigenous Peoples and International Law: 1 Historical Underpinnings

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Indigenous Peoples and International Law: 1 Historical Underpinnings

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Chapter 1

Indigenous Peoples and International Law

1 Antony Anghie, Imperialism, Sovereignty and the Making of International

9 Lynch, Spanish Colonial Sovereignty 83.

§2 Developments in International Law: An Overview

I Natural Law and the Law of Nations

Vitoria’s propositions substantiates the ownership of land and property

15 De Vitoria is also referred to as Franciscus de Victoria in other literature.

18 Vitoria, On the Indians 123.

26 Vitoria, On the Indians 161.

domestic court to reflect the icj’s findings in 1975. In Mabo v. Queensland ii

II The Uncivilized Other

46 Mattias Åhrén, Indigenous Peoples’ Status in the International Legal

The Indian nations have always been considered as distinct, independent

61 Id. at 869–870 (1928).

between equals; it is rather a form of internal organisation of a colonial territo-

The significance to indigenous peoples of the exclusive possession of legal

105. Consequently, the problematique of indigenous treaties and other

1 The Berlin Conference of 1884 to 1885

70 Id. at para. 266, 42; para. 58, 10–11.

It is the future of Africa which is here at issue. No dissent manifested

2 The League of Nations and the Mandates System

§3 The International Labour Organization

85 The Covenant of the League of Nations, Art. 23 (b).

I The “Native Labour Code”

91 Treaty of Versailles, Part xiii, Ch. iii, Art. 421.

measure, protecting the interests of indigenous workers. Two other conven-

97 Ilo, Convention concerning the Regulation of Written Contracts of Employment of In-

II The Integrationist Paradigm and Milestones in 1950s

106 Lee Swepston, The Foundations of Modern International Law on Indige-

This doctrine (of integration) involves recognition of the cultural values

114 Rodríguez-Piñero, Indigenous Peoples 66.

III Ilo Convention Concerning the Protection and

consent is diluted by the broad exceptions to its application on account of : (a)

§4 The United Nations and the Human Rights Regime

129 Doyle, fpic 77.

concerned. Unlike the League of Nations’ “sacred trust of civilization” which

134 Id. at Ch. xi, Art. 73(b).

crime of genocide, which consists of acts committed with intent to destroy, in

any distinction, exclusion, restriction or preference based on race, co-

1. All peoples have the right of self-determination. By virtue of that right

142 Id. at Art. 2.

3. The States Parties to the present Covenant, including those having

Additionally, an indigenous person is “one who belongs to these indigenous

§5 The Ilo’s Indigenous and Tribal Peoples Convention, 1989

Developments in the political milieu, in the discourse on human rights in general,

153 Anaya, Indigenous Peoples 56–57; Hannum, Developments 653.

I Shifts in the Paradigm

1. This Convention applies to:

country belongs, at the time of conquest or colonisation or the

II Consultation and Participation

162 Anaya, UN Developments 1004.

fundamental to the abandonment of ilo c107’s integrationist approach.167

In 2003, the Constitutional Court of Colombia extensively referred to ilo c169

III Land and Indigenous Peoples

representation of affected peoples.176 Additionally, Article 16 guarantees the

… Among indigenous peoples there is a communitarian tradition regard-

ownership of the land is not centered on an individual but rather on the

The inclusion of clauses on the utilization of natural resources is also a prom-

§6 The UN Declaration on the Rights of Indigenous Peoples

182 Id. at para. 149.

190 Statute of the icj, Art. 38(1)(d).

other sources of international law.195 The undrip’s provisions on equality and