Struggling to secure indigenous rights

As indigenous protests gain momentum, most governments fail to practice what they have committed to internationally.

Diamond Jubilee Pageant Tea Party
The UN International Day of the World's Indigenous Peoples is observed on August 9 each year to promote and protect the rights of the indigenous population [GALLO/GETTY]

Today, August 9, is the International Day of the World’s Indigenous Peoples. The UN proclaimed it back in 1994 with announcement of the Decade for Indigenous Peoples. Since then, international instruments securing the rights of indigenous peoples have blossomed.

International treaties have validated claims to self-determination and emphasised the role of collective rights in contemporary politics, for example, by insisting on the observance of prior and informed consent in planning and constructing huge dams and oil exploration projects.

Yet as indigenous protests gain momentum, governments around the world consistently fail to practice what they have committed to internationally. Conflicts over the extraction of natural resources on indigenous lands have expanded to the Arctic, while clashes between governments and social movements have escalated into a declared state of emergency in Peru.

Is the gap between international law and political practice explained by the normal problems of implementation? Or is there a deeper, structural impediment to the full realization of indigenous legal rights? Any celebration of indigenous peoples calls for serious debates on what is systematically obstructing their rights in practice.

Consolidating international law

The first international treaty to endorse the rights of indigenous peoples was the one that gave rise to contemporary ethno-politics. When the International Labour Organisation (ILO) passed Convention 169 in 1989, it established indigenous rights to self-determination. 

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The convention not only recognised collective rights, such as rights to culture and autonomous governance, but also established prior and informed consent, requiring indigenous participation in political decision-making that impacts their communities and territories.

The ILO Convention provided legitimacy to national and local struggles that had been in the making for decades in Mesoamerica and the Andes. In Ecuador, social movements evolved into formal politics, giving rise to the indigenous political party, Pachakutik, that has played a central role in the making and unmaking of governments.

ILO Convention 169 also marked the prelude to two decades of consolidating international legislation on the rights of indigenous peoples at the United Nations. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was a latecomer in many respects. Finally passed in 2007, it was the longest debated human rights instrument in UN history. 

Granted, UN processes are slow. Still. It took two UN Decades for member states to reach an agreement on the political status of indigenous rights. After the First International Decade of the World’s Indigenous Peoples (1995-2004) failed to resolve contention over self-determination, the General Assembly had to expand the timeframe with a second UN Decade (2005-2015) under the theme “A Decade for Action and Dignity”.

The controversy focused primarily on the practice of indigenous autonomy – and its implications for state sovereignty. Most member-states reacted to Article 46 insisting that the declaration not be interpreted in any way that could impair the territorial sovereignty of states. Four governments voted against the declaration (Australia, New Zealand, Canada and the US) out of opposition to the majority’s interpretations of sovereignty.

The Obama administration has recently revised its stand to recognize the UNDRIP. This has permitted the UN to conduct its first independent inquiry into the human rights of almost three million US Native-Americans.

The UN Declaration is undoubtedly a milestone in international law. It gave universal legitimacy to norms of self-determination, normalised collective rights in international law and strengthened indigenous struggles around the world. It also crystallised some challenges facing the application of international law for indigenous peoples, who may be protected by global treaties by are located within the national borders of states.

As positive as the incorporation of collective rights into international law may seem, their full implementation requires complex systems of authority distinct from the conventional practices of state sovereignty.

The limits of collective rights

Collective rights are undeniably a major achievement for indigenous peoples worldwide. Yet they encompass significant limits, both in terms of implementation and of their conceptual implications. First, rights are easier said than done. 

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Governments preach indigenous rights, yet often silence dissident voices. The declaration of a state of emergency by the Peruvian government to stop indigenous protests against mega-mining in Cajamarca is only one recent example of the double discourse that subverts indigenous collective rights around the world.

Second, the implementation problem is tangled up in a larger conceptual conundrum. Collective rights are limited by the recurrent tutelage of the sovereign state. Indigenous peoples gained collective rights to land, but their land still belongs to the sovereign state. They are granted access to the land rather than given property rights over it. Indigenous communities may live and hunt and administer justice on their land, but the land remains under the ultimate authority of the state.

In the Amazon, for instance, indigenous communities have no right to sell their territories or to exploit underground resources. It is the state that owns, and sells, oil. In a way, collective rights grant indigenous peoples unrestricted access to ancestral territories without giving property rights over the land in the larger sense of the word. This inconsistency echoes the lasting debate on the autonomy of Native-American peoples in the US, who were given sovereignty but are forbidden to practice international affairs. 

Collective rights are predicated on the idea that native populations lack faculty to constitute – or manage – private property. It’s not only that those who are not given the faculty to establish property are considered culturally backwards. The faculty to establish property defines political power.

In that sense, collective rights are at once emancipatory and obstructive, poisoned and subverted by the persistent tutelage of the state and unmasking the narrow limits of indigenous rights to citizenship. This very aspect of indigenous collective rights explains why prior consent is bypassed with recurrent impunity.

The politics of property rights

The constitution of space is central to the practice of political authority. That is why the establishment of property is a legitimate function of the state – even if the practices underlying property are frequently coercive, illegitimate and extra-judicial in nature. That is also why indigenous peoples insist on having authority over their own territories.

The expansion of international law recognising the collective rights of indigenous peoples inevitably clashes with the sovereign practices of governments. 

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their sacred lands 

In fact, it’s hard for states to fully recognise the rights of the peoples it has always relegated to outsider status. Indigenous peoples were not only written out of history and framed as uncivilised, but were also kept out of the system of property. This was the very foundation of the modern nation-state, which claimed native lands as empty political spaces that were thrown up for grabs through the doctrine of discovery.

It is because there was no concept of indigenous property that the modern state imposed its political authority over native territories. Indigenous assertions of land rights were always challenges to states that had been forged on conquest, a fundamental tension only accentuated by recent innovations in international law. 

This is why numerous governments are beginning to reject international systems of justice that defend indigenous collective rights, notably the Inter-American Court of Human Rights. As it holds states accountable to indigenous rights, the Inter-American Court validates the claims of peoples traditionally cast as illegitimate outsiders whose authority precedes that of the modern nation-state.

International law that confirms collective indigenous rights to clean water and autonomous territories threatens much more than mega-projects for resource extraction. These laws also destabilise the very political foundations of state sovereignty.

The collective rights of indigenous peoples are so difficult to implement because they imply a redistribution of state authority. They invite alternative models of authority, non-traditional ways of practicing politics.

In a way, indigenous collective rights demand a total revamping of state sovereignty as we know it. It’s always hard to navigate unchartered waters, but with the right blend of political will and creativity, it can be done.

Manuela Picq has just completed her time as a visiting professor and research fellow at Amherst College.