Faculty of Law
Marijke C. Postma 11082623
Standing for Indigenous Peoples and Minority Groups in International
Human Rights Complaints Procedures
LLM thesis in International and European Law: Public International Law
Supervisor: Prof. Dr. Yvonne Donders
Amsterdam 20 July 2017
1 ABSTRACT
The aim of this thesis is to investigate and identify to what extent indigenous peoples and minority groups have standing during international human rights complaints procedures. In the first part, minority groups and indigenous peoples as subjects of international law will be discussed. To a certain extent they can be considered having legal personality. Then the different rights which apply to the two groups will be identified. In the last section the actual enforcement of standing for indigenous peoples and minority groups is examined on an international and regional level. Several rights and duties were conferred upon minority groups and indigenous peoples. Indigenous peoples were even granted a certain amount of legal capacity when being invited to working on the draft of the United Nations Declaration on the Rights of Indigenous Peoples. Minority groups and indigenous peoples have standing during human rights complaints procedures to the extent that they need to be represented by a third party in most cases. Proceedings in the African and American human rights system, and the use of the ILO proceedings is only possible for indigenous peoples when being represented by a third party. Communications at the CERD and the collective complaints proceedings of the ESC are applicable to NGOs who can represent a minority group. Striking is that Europe only allows NGOs who are victims themselves to bring claims.
2 TABLE OF CONTENTS
INTRODUCTION ... 3
CHAPTER I GROUPS AS SUBJECTS OF INTERNATIONAL LAW ... 5
1.1 Historical Development ... 5
1.2 Individuals ... 6
1.3 The Group... 7
1.4 Conclusion ... 9
CHAPTER II GROUPS AND THEIR RIGHTS ... 9
2.1 The Rights ... 10
2.1.1 Rights of Persons Belonging to Minorities... 11
2.1.2 Rights of Indigenous Peoples ... 12
2.2 Group Rights vs Individual Rights ... 13
2.3 Conclusion ... 14
CHAPTER III ENFORCEMENT OF STANDING FOR GROUPS ... 14
3.1 International Level ... 14
3.1.1 International Convention on the Elimination of All Forms of Discrimination... 15
3.1.2 ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries ... 16
3.1.3 International Covenant on Civil and Political Rights and the First Optional Protocol ... 18
3.1.4 United Nations Declaration on the Rights of Indigenous Peoples ... 19
3.2 Regional Level ... 20 3.2.1 The Americas ... 20 3.2.2 Africa ... 24 3.2.3 Europe ... 26 3.3 Representation ... 30 3.4 Conclusion ... 31 CONCLUSION ... 31 BIBLIOGRAPHY ... 33
3 INTRODUCTION
The adoption of the United Nations Declaration on the Rights of Indigenous People (UNDRIP)1 in 2007 was an important acknowledgement of the special position held by these peoples, especially with the focus on their group rights and the necessity to protect the rights. Nevertheless, the focus is often on protecting the rights of ‘persons belonging to’ a group.2 Indigenous peoples, as well as and national, religious and linguistic groups are unable to make a collective legal claim to enforce their rights. The Human Rights Committee (HRCee) does not allow groups to submit a collective complaint under their respective individual complaints procedure.3 This may be deemed strange, as the International Covenant on Civil and Political Rights4 (ICCPR) starts with a right aimed at groups or communities: the right to self-determination.5 Moreover, with the adoption of the UNDRIP, the suggestion is made that the United Nations (UN) stands favourably towards the enforcement of groups and their rights. The rights are clearly granted, but it remains ambiguous how these rights will be claimed by indigenous people or minority groups when their rights are violated.
The purpose of this thesis is to ascertain to what extent minority groups and indigenous peoples are able to have locus standi during international human rights complaints procedures. This is analysed by first establishing groups as subjects of international law. In traditional public international law, states are still the primary actors and subjects. 6 They possess the capacity to have and maintain rights, they have duties and the possibility to enforce rights. However, several other actors have entered the stage, such as international organisations who play an important role in international law and possess a certain form of legal personality.7 Since World War II, individuals are gradually more accepted as subjects of international law. This broader conception of legal personality has paved a way for even more actors to be recognised as subjects of international law.8 Minority groups and indigenous peoples have become subjects of international law since the adoption of the ILO Convention
1 United Nations Declaration on the Right of Indigenous Peoples (adopted 13 September 2007) UNGA Res 61/295 (UNDRIP).
2 United Nations Human Rights Committee General Comment on article 27, General Comment No. 23 U.N. GAOR, Hum. Rts Comm 50th sess at 9 UN Doc CCPR/C/21/Rev. 1/Add.9 (1994).
3 UN Human Rights Office of the High Commissioner, ‘Individual Complaints Procedures Under the United Nations Human Rights Treaty’ (2013) Factsheet No 7/Rev. 2 1
4 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) UNTS 660,
5 ICCPR, art 1
6 Malcolm N Shaw, International Law (7th edn, Cambridge University press 2014) 195.
7 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Re.
8 Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumara (eds) International Human Rights Law (2nd edn, OUP 2014)
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No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169), the adoption of the UNDRIP, and the implementation of collective article 1 of the ICCPR. Certain rights, duties and, to some extent procedural capacity has been bestowed upon these groups.9 Different entities have different rights, duties and competencies.
The following chapter discusses the rights available for the protection of the interests of minority groups and indigenous peoples. These are categorised as group rights, group-differentiated rights and individual rights. Moreover, the specific rights for members belonging to minorities are discussed compared to the rights of indigenous peoples.
The final section discusses and compares the available complaints procedures on an international and a regional level, to determine the available possibilities for minority groups and indigenous peoples, starting on the international level with the examination of several instruments and their complaints procedures. The chapter begins with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and its complaints procedure, then examines the importance of the ILO Convention No. 169. Furthermore, article 1 and article 27 of the ICCPR are explored as well as how they have been discussed during complaints. The last international instrument analysed is the UNDRIP and its evolutionary adoption. Even though it does not contain a complaints procedure, it does contain an important article on fair trial for indigenous peoples.10
On the regional level, the American, African and European human rights mechanisms are analysed. It is well-known that the Inter-American Commission of Human Rights (IACommHR) and the Inter-American Court of Human Rights (IACtHR) handle cases regarding infringement on the human rights of indigenous peoples.11 The marginalised position of the indigenous peoples in the Americas has been recognised as such and addressed during proceedings.12 For the first time since the establishment of the African Court of Human and Peoples’ Rights (ACtHPR), there has been a decision on a case about the infringement of certain group rights and individual rights enjoyed by the Ogiek people, in which the people
9 United Nations Human Rights office of the High Commissioner, ‘Mandate of the Working Group on
Indigenous Populations’ (OHCHR, 1996) http://www.ohchr.org/EN/Issues/IPeoples/Pages/MandateWGIP.aspx accessed 11 May 2017.
10 UNDRIP, art 40
11 Valerio de Oliveria Mazzuoli and Dilton Ribeiro, ‘Indigenous Rights before the Inter-American Court of Human Rights: a Call for a Pro Individual Interpretation [2015] Harvard ILJ
<http://www.harvardilj.org/2015/02/indigenous-rights-before-the-inter-american-court-of-human-rights-a-call-for-a-pro-individual-interpretation/ > accessed 5 April 2017
12 Organization of American States, ‘A 17-Year Wait Pays off for Indigenous Peoples’ (OAS, 15 June 2016) < http://www.oas.org/en/media_center/press_release.asp?sCodigo=E-075/16> accessed 26 May 2017
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were represented by several NGOs.13 The European Court of Human Rights (ECtHR) has not seen a landmark case, in which certain minority groups or indigenous peoples could claim their rights as a group. The complainant needs to show that he or she has been a victim of a violation of a fundamental right set out in the European Convention on Human Rights (ECHR).14 The European Social Charter’s (ESC) collective complaints procedure is available only to social partners and approved NGOs, but such an NGO can represent the interests of a minority group.15
CHAPTER I GROUPS AS SUBJECTS OF INTERNATIONAL LAW
In international law, the most important subjects are states. States, as subjects of international law possess legal personality. Christian Walter uses the following as a working definition of subjects of international law, ‘entities which are capable of possessing international rights and duties.’16 Traditionally, the procedural capacity to carry out legal acts and to enforce rights are also conditions for being deemed a subject of international law.17 In the next section, the historical development of subjects of international law is discussed, as well as the extent to which groups possess legal personality.
1.1 Historical Development
Historically, states were believed to be the only and most important subjects of international law. States possess legal personality and the capacity to create international law, by the mere fact that they are states and are sovereign. If a people did not qualify as a state, they were excluded from international law.18 For a long time, the rights of indigenous peoples were only part of the domestic sphere. This was confirmed in the 1926 Cayuga Indians Arbitration: “So far as an Indian tribe exists as a legal unit, it is by virtue of the domestic law of the sovereign
13 African Commission, Communication No 381/09, CEMIRIDE, Minority Group International & Ogiek Peoples
Development Programme (On behalf of the Ogiek Community) v Republic of Kenya
14 Tom Koivurova, ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples:
Retrospect and Prospects’ (2011) 18 International Journal on Minority and Group Rights 1, 7
15 ‘The Collective Complaints Procedure’, (Council of Europe) < https://www.coe.int/en/web/turin-european-social-charter/collective-complaints-procedure1> accessed 16 July 2017
16 Christian Walter, ‘Subjects of International Law’ (2007) Max Planck Encyclopedia of Public International Law <
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1476?rskey=IiXdaJ&result=1&prd=OPIL> accessed 10 June 2017.
17 Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law (9th edn, vol 1, OUP 2008)
18 Harriet Ketley, ‘Exclusion by Definition: Access to International Tribunals for the Enforcement of Collective
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nation within whose territory the tribe occupies the land, and so far only as that law recognizes it.”19 It meant that claimant groups were not recognised and therefore their rights were subject to the state in which they were residing; any international protection was denied.20 However, during the Westphalian times there were already non-state actors of international law, such as the Holy See and several Free Cities.21 After the WWII and with the decision in the Reparation for Injuries case,22 another player was recognised as a subject of international law: the international organisation. In the same decision, the ICJ established that legal personality is a matter of degree.23 This sense of degree makes legal personality a possibility for entities other than states. Since non-state actors have entered the arena and can be subjects and objects of international law, the definition of legal personality has altered. The
Reparation for injuries case also makes a distinction between full and partial international
legal personality. States are the only subjects of international law who enjoy full legal personality. Partial international legal personality has limitations because rights and duties are conferred upon them by the states.24
1.2 Individuals
In the past seven decades, the view on subjects of international law has changed. Previously individuals were exclusively under the control of a sovereign state. Now individuals are granted certain rights by several international treaties, including international human rights treaties, which were adopted after the Second World War and the creation of the UN. Notably, is the International Bill of Human Rights which includes the Universal Declaration of Human rights,25 the ICCPPR and the ICESCR. Several individual human rights complaints procedures available under the international human rights treaties have given individuals the possibility to enforce their rights. However, rights conferred upon individuals go beyond human rights treaties; a clear example of the granting of rights to individuals was the decision of the the International Court of Justice (ICJ) in the LaGrand case. The ICJ explicitly stated
19 Cayuga Indians (Great Britain) v. United States (1926) 6 R.I.A.A. 173. The Agreement of 18 August 1910 (211 C.T.S. 408) 176.
20 Ketley (n 18) 335. 21 Christian Walter (n 15).
22 Reparation for Injuries Suffered in the Service of the United Nations (n 6)
23 Reparation for Injuries Suffered in the Service of the United Nations (n 6)
24 Christian Walter (n 15).
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that, “the Vienna Convention on Consular Relations grants rights to individuals based on its plain meaning”.26
Not only have rights been granted to individuals, but duties have also been bestowed upon individuals. The Nuremberg trials held individuals responsible for their crimes during WWII. Since the Nuremberg trials, several ad hoc tribunals have been created to prosecute war crimes (e.g. International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda) and since 2003, the International Criminal Court (ICC) deals with crimes committed by individuals. The ICC made its first conviction in 2012, for the crimes committed by Thomas Lubanga in the Democratic Republic of Congo.27 Also, in international humanitarian law, there are not only state actors, but also insurgents and belligerents. They are not states, yet they must abide by certain rules of international law.28
Individual have been granted a more visible and active role within international law. They are no longer merely objects of international law; nevertheless, they have not been granted the same position as states, as the personality of individuals is still derived from the state. Thus, some call individuals a partial subject of international law.29
1.3 The Group
Lauterpacht stated about legal personality that ius standi is not a prerequisite of the legal subjectivity of individuals.30 If so, it can be argued that groups have legal personality even though their ius standi has been limited or denied in complaints procedures. Legal personality does not add to the underlying facts that certain entities have certain rights and or duties in the according legal system.31 By this logic, groups can be legal persons of international law, but will not have the same legal personality as states. Indigenous peoples have been granted specific rights under the ILO Conventions, and the adoption of the UNDRIP has paved a way for indigenous peoples to be recognised as subjects of international law. Similarly, the African Charter of Human and Peoples’ Rights, which is the only regional charter to have included a specific chapter on peoples’ rights, states that these rights are to be enjoyed in community
26 LaGrand Case (Germany v United States of America) [2001] ICJ Rep 104, 77. 27 The Prosecutor v Thomas Lubanga Dyilo (2012) <
https://www.icccpi.int/drc/lubanga/Documents/lubangaEng.pdf> accessed 9 May 2017. 28 Malcom N Shaw (n 6) 179.
29 Christian Walter (n 16).
30 Hersch Lauterpacht, International Law and Human Rights (1st edn, Archon Books 1968) 61.
31 Corsin Bisaz, The Concept of Group Rights in International Law – Groups as Contested Right-Holders, Subjects and Legal Persons (Martinus Nijhoff Leiden 2012) 42.
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with one’s people.32 According to Christian Walter (2007), indigenous peoples could not yet claim to be subjects of international law. However, Walter made this statement, before the UNDRIP was adopted and was still in its drafting phase, and he neglected the adoption of the ILO Conventions, which was long before his statement.33 The UNDRIP was adopted by an overwhelming part of the international community, with only four states voting against and eleven states abstaining. Since the vote at the General Assembly, all four countries that voted against have made statements in favour of the UNDRIP adoption.34 Despite the declaration being non-binding, it can be said that the position of indigenous peoples has changed to at least being a partial subject of international law. Brölmann and Nijman agree, that since there has been a shift in the modern international legal personality and more actors have gained prominence in the international field indigenous peoples and minorities have also assumed international legal personality, but to the extent ‘that they carry rights and duties under international law’.35
However, indigenous people do not only carry rights and duties, they were also granted certain capacities in the past. In 1982, the UN Economic and Social Council (ECOSOC) authorised the Sub-Commission on Prevention of Discrimination and Protection of Minorites to establish the UN Working Group on Indigenous Populations (WGIP). The WGIP was open to all representatives of indigenous peoples and their communities and organisations.36 To allow their participation in drafting and adopting the Draft Declaration on the Rights of Indigenous Peoples in 1993, which ultimately resulted in the adoption of the UNDRIP by the UN General Assembly, shows that specific procedural capacities were conferred upon the representatives of indigenous groups.37
To a lesser degree it might be argued that certain minorities, as a group, are subjects of international law. The HRCee has acknowledged the communal aspect of article 27 of the
32 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter)
33 Christian Walter (n 16).
34 Erin Hanson, ‘UN Declaration on the Rights if Indigenous Peoples’ (Indigenous Foundations, 2010) <http://indigenousfoundations.arts.ubc.ca/home/global-indigenous-issues/un-declaration-on-the-rights-of-indigenous-peoples.html> accessed 10 July 2017.
35 Catherine Brölmann and Janne Nijman, ‘Legal Personality as a Fundamental Concept for International Law’
(2016) Amsterdam Law School Legal Studies Research Paper No 43, 14
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2845222> accessed 11 May 2017.
36 United Nations Human Rights office of the High Commissioner, ‘Mandate of the Working Group on
Indigenous Populations’ (n 9) 37 ibid.
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ICCPR.38 As the ICCPR is already an example for individuals to be partial subjects of international law, the same can be argued for minorities as group claiming their rights under article 27. Ermacora pointed out in 1989 that the practice of states towards article 27, as well as the practice of human rights specialists, is of considerable importance for determining the manner in which article 27 is implemented. State practice can be determined by the reports submitted by member states to the HRCee under article 40 about their current human rights situation. Many of these reports contain information regarding the application of article 27. These states all mentioned, “the situation of the minority group” not the situation of the members belonging to a minority group. Similarly, human rights experts only referred to the group, not to the individual.39 Both practices are a sign of recognising the legal personality of the group in international law.
1.4 Conclusion
Since Westphalia, much has changed internationally. Individuals and international organisations can be subjects of international law, which has opened the door for the recognition of other entities. It can be argued that groups are subjects of international law with legal personality. Rights have been conferred upon groups by several international and regional instruments and indigenous peoples were even granted specific legal capacity when invited to work on the draft of the UNDRIP. This action gives them legal personality with legal capacity to a certain extent in international law.
CHAPTER II GROUPS AND THEIR RIGHTS
Before analysing the standing for minority groups and indigenous people, the rights conferred upon them must be discussed. These conferred rights can be separated into group rights, group-differentiated rights and individual rights. Concrete examples show the plethora of rights that are enforced by minorities and indigenous peoples. These rights can overlap, but there are also distinctions.
38 General Comment 23 on article 27 Human Rights Committee; Chief Bernard Ominayak and Lubicon Lake
Band v Canada [1990] HRCee Comm No 167/1984, 33.
39 Felix Ermacora, “The Protection of Minorities before the United Nations (Martinus Nijhoff Publishers 1989)
10 2.1 The Rights
The starting point of this chapter is group rights, because a group right is a right where the main feature is that the group is the right-holder.40 Therefore, enforcement of the right is by the group, not the individual. Moreover, aggregating the rights of several, separate individuals cannot be considered a group right.41 The rights are granted to a group, because the group has a special identity. This is dissimilar from group-differentiated rights, which are rights accorded to the individuals of a particular group.42 An frequently used example is the right to form and enjoy a trade union: an individual has a right to join the trade union, and once joined, has rights he possesses because he is a member of the group; however, the right is still held individually.43 Group-differentiated rights can also be applied to members belonging to a certain cultural group.
The more commonly recognised group right is the right to self-determination.44 Self-determination is defined in article 1(2) of the United Nations Charter as: ‘friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’. The notion of self-determination was also included in the first articles of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights: ‘All peoples have the right to self-determination’. The right is explained by Cindy Holder as: “a group’s right to make decisions together and for themselves about the conditions and terms that govern shared aspects of life.”45 To indigenous peoples, the right to determination is of special importance, they want to have autonomy and self-governance within the state.46 For them, it is problematic that the right of self-determination is dominantly not recognised as a right which is justiciable for indigenous peoples.47 In addition to the right to self-determination, land rights granted to indigenous peoples are also known group rights.48
40 Bisaz (n 31) 8.
41 Peter Jones, ‘Human Rights, Group Rights, and Peoples’ Rights’ (1999) 21 Human Rights Quarterly 80, 82. 42 Eric J Mitnick, ‘Three Models of Group-Differentiated Rights (2004) 35 Columbia Human Rights Law Review 215.
43 Jones (n 41) 82.
44 James Crawford, ‘The Rights of Peoples: ‘Peoples’ or ‘Governments’?’ (1985) 9 Bull. Austl. Leg. Phil 136, 139 45 Cindy Holder, ‘Self-Determination as a Universal Human Right’ (2006) 7 Human Rights Review 5, 7.
46 Ketley (n 18) 372. 47 Bisaz (n 31) 65.
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2.1.1 Rights of Persons Belonging to Minorities
The protection of minority rights is centred around non-discrimination, which is mainly focused on the individual freedoms.49 International instruments enshrining minority rights are mostly focused on individual rights or on group-differentiated rights. Specifically, these rights are protected in the ICERD and in article 27 of the ICCPR. The Committee on the Elimination of All Forms of Racial Discrimination (CERD) published General Recommendations on discrimination against Roma, which sets out the relevance and the applicability of the ICERD with respect to groups of marginalized and vulnerable people, explaining the normative content and the implications of the ICERD in support of these groups.50
Article 27 is the most extensively cited article in the protection of minorities. Article 27 refers to, ‘persons belonging to … minorities’, which gives it an individual dimension; nevertheless, the communal part cannot be neglected. The rights granted by article 27 are enjoyed in community.51 The same can be argued for the rights set out in the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (Minority Declaration).52 However, there are some communal features to several rights, e.g. the protection of group identity and existence, it is not a group right, but it does confirm the collectiveness of the rights in the strict sense.53 The group identity is protected by article 1 of the Minority Declaration, not the identity of the individuals belonging to the group. Yet, most of the instruments focus on rights of the members belonging to the minority group and not on the rights of the minority group itself.
49 Dieter Kugelmann, ‘The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity’ (2007) 11 Max Planck UNYB 233.
50 Theo van Boven, ‘Categories of Rights’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumara (eds),
International Human Rights Law (2nd edn, OUP 2014) 153.
51 Patrick Thornberry, ‘Images of Autonomy and Individual and Collective Rights in International Instruments on
the Rights of Minorities’ in M Suksi (ed), Autonomy : Applications and Implications (Kluwer Law International 1998) 106.
52 UN Declaration on the Rights of persons belonging to National or Ethnic, Religious and Linguistic Minorities
(adopted 3 February 1992) UNGA Res 47/135 (Minority Declaration).
53 Minority Declaration, art. 1; Patrick Thornberry, ‘Images of Autonomy and Individual and Collective Rights in International Instruments on the Rights of Minorities’ in M Suksi (ed), Autonomy : Applications and Implications (Kluwer Law International 1998) 109.
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2.1.2 Rights of Indigenous Peoples
Indigenous peoples enjoy individual rights, group-differentiated rights and certain group rights.54 Specific group rights for indigenous peoples are included in several treaties and conventions. 55 Groups rights for indigenous peoples stem from the fact that indigenous peoples view their primary identity in a collective manner. The identity of the individual is connected to the community and often the community identity is regarded as more important than the individual’s one. The emphasis on community is interlinked with the importance of group rights, such as the right to self-determination, land rights and natural resources rights.56 These rights are held as a group, rather than as an individual. Land rights bear importance because the entire livelihood of indigenous peoples is often linked to the land they live on, as are their religious and cultural beliefs.57
The first international instrument on indigenous peoples’ rights was ILO Convention No. 107,58 which was later replaced by ILO Convention No. 169.59 Specific group rights enshrined in ILO Convention No. 169 are in article 14.1 on the ownership of their indigenous lands and natural resources,60 and in article 6.1 on the right to be consulted as a group.61 Articles 8, 9 and 10 of ILO Convention No. 169 allow for indingeous peoples to have their own cultures and traditions. Their special circumstances are also enshrined in these articles. However, what remains problematic is that ILO Convention No. 169 does not have broad
54 Kugelmann (n 49) 233.
55 E.g. UNDRIP and the ILO Conventions No. 169.
56 UN Sub-Commission on the Promotion and Protection of Human Rights, ‘Prevention of Discrimination Against and the Protection of Minorities Report of the Working Group on Minorities on its fifth session’ (Geneva, 25-31 May 1999) Chairman-Rapporteur: Mr. Asbjørn Eide, 24 June 1999,
E/CN.4/Sub.2/1999/21, 48. 57 Ibid. 42
58 ILO Convention No.107 Concerning the Protection and Integration of Indigenous and Other Tribal and
Semi-Tribal Populations in Independent Countries, UNTS vol. 328 No. 247, 1957 (ILO Convention No. 107).
59 ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, Official Bulletin,
vol. LXXII, Series A, no.2, 1989 (ILO Convention No. 169).
60 Article 14.1: “The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.”
61 Article 6.1: “In applying the provisions of this Convention, governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions,
whenever consideration is being given to legislative or administrative measures which may affect them directly; (b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them; (c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.”
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support among the international community. Only 22 states have ratified the convention. Still, most of the Latin American states that have high numbers of indigenous peoples have ratified the convention.62
International recognition of group rights for indigenous peoples came with the adoption of the UNDRIP.63 The right to self-determination64 is enshrined in the UNDRIP and clearly shows that groups possess group rights, but does not impose legally binding obligations upon the member states. Nevertheless, the adoption of the UNDRIP remains important for advocating against the hardships faced by indigenous peoples. Indigenous peoples remain in many countries among the poorest and most marginalised people.65
Another important organ is the CERD. The CERD is known for being a driving force behind the recognition of the group rights of indigenous peoples, by interpreting human rights instruments that are generally favourable for indigenous peoples through their reports and recommendations, such as General Comment 23 which was adopted in 1997. As it specifically focuses on the protection of indigenous peoples, the CERD made a call for member states to report about the status of their indigenous peoples.66
2.2 Group Rights vs Individual Rights
Group rights are an important feature for indigenous peoples who identify more as a community than individuals. However, there are some negative connotations to group rights. They have been reproached for being anti-individualist and incompatible with individual rights. The strongest argument against them is that group rights tend to be claimed against individuals and are therefore unfair towards the individuals, because they create inequality.67 However, this argument loses validity, as in every conflict between rights there should be a balancing act between the two rights. In that sense, it should not matter if the conflicting
62 International Labour Organization, ’Ratification of C169 – Indigenous and Tribal Peoples Convention, 1989
(No. 169)’ (Normlex, 5 September 1989)
<www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312314> accessed 8 May 2017.
63 United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) UNGA Res
61/295 (UNDRIP).
64 Article 3: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” 65 Kugelmann (n 49) 258.
66 OHCHR, CERD General Recommendation No. 23: Indigenous Peoples: 18/08/97, (General Comment), 51st session 1997 A/52/18 annex V.
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rights were two individual rights or a group right and an individual right. Group rights and individual rights, ‘must be used in harmony to create equality on the basis of difference’.68
Moreover, it is argued that group rights are not human rights. Those who use this argument claim that human rights are born by human beings and a group is simply not a human being. However, the right to self-determination has been added to the ICCPR and the ICESCR, which makes it difficult to argue against group rights being human rights.69
2.3 Conclusion
Minority groups and indigenous peoples depend on similar rights, but also have different interests. Group rights are mostly bestowed upon indigenous peoples, while minority groups are protected by group-differentiated rights. The communal dimension is recognised, which is important to minority groups and their group identity. For indigenous groups, it is not ground-breaking enough; however, it is a move into the right direction toward full recognition of their special position. The UNDRIP has made a larger impact, albeit non-binding.
CHAPTER III ENFORCEMENT OF STANDING FOR GROUPS
After having established the legal personality of groups and having determined that different rights are granted to minority groups and indigenous peoples, this section analyses the actual enforcement of standing for indigenous peoples and minority groups, first on an international level and then on a regional level. The possible usage of several UN instruments is investigated, before moving to the Inter-American human rights system, the African human and peoples’ rights system and the European human rights system. The chapter concludes with a section on representation for groups during human rights complaints procedures.
3.1 International Level
Internationally, there are many instruments and declarations supporting group rights and groups; however, most of these instruments have not included a provision or protocol to enforce the rights. The group rights are acknowledged but those who should be protected by
68 Bisaz (n 31) 152. 69 Jones (n 41) 107.
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the rights granted cannot invoke the rights in a complaints procedure. Yet, groups have tried and succeeded in certain instances to find protection for their rights.
3.1.1 International Convention on the Elimination of All Forms of Discrimination
The ICERD was adopted in 1965 and established the first complaints procedure of the UN.70 The ICERD entails several articles that include an element of collectiveness and pose positive and negative obligations on the state.71 Article 4 and article 7 of ICERD contain obligations for states to take positive action to ensure the advancement of not only individuals but also ethnic groups in their entirety.
Article 14 provides that an individual or a group of individuals claiming to be victims can bring complaints to the CERD, if the state concerned made a declaration recognising the competence of the CERD.72 Not many states have made this declaration, but the CERD decided in a few instances on the protection of minorities and indigenous peoples.
Currently, CERD has given its opinions on communications brought by a group of individuals in several cases.73 All cases were brought by a group of individuals petitioning the Committee regarding the discrimination of their minority groups within the respective countries. In The Jewish community of Oslo, the Jewish community of Trondheim, Rolf
Kirchner, Julius Paltiel, the Norwegian Antiracist Centre, and Nadeem Butt v Norway, the
CERD stated that:
it did not consider the fact that three of the authors are organizations posed any problem to admissibility, and that the requirement that each individual within the group be an individual victim of an alleged violation would be to render
meaningless the reference to ‘group of individuals. The CERD considers the nature
70 International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entry into force 4 January 1969) A/RES/2106 (XX) (ICERD).
71 ICERD, art 4: “States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination” ; ICERD, art 7: States Parties undertake to adopt … to combating prejudices which lead to racial discrimination and to promoting
understanding, tolerance and friendship among nations and racial or ethnical groups”.
72 ICERD, art 14.1: A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. 73 POEM and FASM v Denmark , Ms. L. R. et al. (represented by the European Roma Rights Center and the League of Human Rights Advocates) v Slovak Republic; The Jewish community of Oslo, the Jewish community of Trondheim, Rolf Kirchner, Julius Paltiel, the Norwegian Antiracist Centre, and Nadeem Butt v Norway;
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of the organisations’ activities and the groups of individuals they represent and that therefore they do satisfy the “victim” requirement within the meaning of article 14.1 ICERD.74
Yet, Norway tried to argue that organisations could not be victims and did not have standing, because only individuals can be victims, not a group.75
In Zentralrat Deutscher Sinti un Roma et al v Germany, Germany argued that an organisation could not be a victim under article 14, because a legal person cannot be a group of individuals. The CERD took the same approach as in the previously mentioned case, stating that being an organisation is not barred from access to communications by the CERD.76 The opinion taken by the CERD shows that standing for a group is possible when represented by an organisation. The organisations in the cases noted above all defended the rights of larger communities.
In theory, indigenous peoples should be able to petition the CERD, this has not occurred. Despite there not being any petitions on behalf of indigenous groups in community, there have been petitions by individual members of indigenous peoples. Individual petitions can advance the position and rights of groups indirectly.
The fact that complaints by groups of individuals were included and that individuals may be represented by NGOs who are advocates of minority rights is a sign that there are possibilities for groups to enforce their rights. The CERD opened for communication in 1982, when the tenth state accepted its competence. Despite the progressiveness of the CERD, only 64 petitions have been brought to it since its foundation.77
3.1.2 ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries
ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries78 is the successor of ILO Convention No. 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent
74 Communication No 30/2003, adopted by the Committee at its 67th session, 2-9 August 2005, 22 August 2005, CERD/C/67/D/30/2003, 7.4.
75 Communication No 30/2003, adopted by the Committee at its 67th session, 2-9 August 2005, 22 August 2005, CERD/C/67/D/30/2003, 4.3.
76 Communication No 38/2006, adopted by the Committee at its 72nd session, 18 February-7 March 2008, 3 March 2008, CERD/C/72/D/38/2008, 7.2.
77 Office of the High Commissioner of Human Rights, ‘Jurisprudence’ (OHCHR, 2017) < http://juris.ohchr.org/search/results> accessed 30 May 2017.
78 ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, Official Bulletin, vol. LXXII, Series A, no.2, 1989 (ILO Convention No. 169).
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Countries,79 and the only universally binding instrument on the rights of indigenous peoples. Currently, only 22 member states of the ILO have ratified the Convention.80
Direct enforcement of the rights enshrined in ILO Convention No. 169 remains impossible, but the ILO Constitution81 grants the possibility for state parties to start a complaints procedure against another state party if they have breached any of the rights as set out in the ILO Conventions. Article 26.1 states: “Any of the Members shall have the right to file a complaint with the International Labour Office if it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified in accordance with the foregoing articles.” 82 This has never been used for ILO Convention No. 169.
Another complaints procedure is by use of representation. Article 24 of the ILO Constitution bestows the possibility to be represented by an employers’ or workers’ organisation of a member state.83 Nineteen times since the ratification of ILO Convention No. 169, article 24 of the ILO Constitution has been invoked to address the application of the Convention by a member state.84 This shows the importance of the Convention, besides its limited ratification. The difficulty remains that indigenous groups are unable to represent themselves and must rely upon the representation of a third party, an employers’ or workers’ union. Furthermore, the employers’ or workers’ union do not need to be directly affected; there is not a victim requirement, which makes the possibility for representation less restrictive then if the union had to be directly affected. The ILO procedure is an important forum for the acknowledgement of the special rights belonging to indigenous peoples, because currently the ILO Convention No. 169 is the only internationally binding instrument that exclusively deals with indigenous peoples’ rights and the enforcement of those rights.
79 ILO Convention No.107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, UNTS vol. 328 No. 247, 1957 (ILO Convention No. 107).
80 International Labour Organization, ’Ratification of C169 – Indigenous and Tribal Peoples Convention, 1989 (No. 169)’ (n 62)
81 Constitution of the International Labour Organisation (adopted 1 April 1919, entered into force 28 June 1919) (ILO Constitution)
82 ILO Constitution, art 26.1
83 ILO Constitution, art 24.1: “In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.”
84 International Labour Organization, ’Representations (Article 24)’ (Normlex, 2017)
<http://www.ilo.org/dyn/normlex/en/f?p=1000:50010:::NO:50010:P50010_ARTICLE_NO:24> accessed 30 May 2017.
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3.1.3 International Covenant on Civil and Political Rights and the First Optional Protocol
The ICCPR and its First Optional Protocol (ICCPR-OP1)85 provide an individual complaints procedure. Standing is regulated in article 1 of the ICCPR-OP1, which states ‘…competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant’. This article shows that there is a strong individual victim requirement. The HRCee states in General Comment 31 that groups are barred from the complaints procedure because the victim must be an individual.86
In the Lubicon Lake Band v Canada case, the HRCee affirmed the non-justiciability of article 1, the right to self-determination. The HRCee states that an individual could not claim to be a victim of the violation of article 1 because it bestows a right upon a people, not an individual.87 The individual complaints procedure can only be invoked when an individual is claiming individual rights, which makes the article non-justiciable.
This stance by HRCee seems contradictory, as the importance of the right to self-determination is acknowledged by the HRCee. The HRCee states that all peoples have the right to self-determination, but they still prevent indigenous people from enforcing the right.88 This has not prevented indigenous peoples from trying to enforce their rights through the complaints procedure available. Over the years, indigenous peoples have used, with varying degrees of success, the individual complaints procedure to address the infringements of their rights. The HRCee has interpreted article 27 very broadly to try to fill the gap indingenous peoples face by being barred from relying on article 1 during the complaints procedure. This happened in the Lubicon Lake Band v Canada, where the HRCee accepted the claim made about the self-determination on the territory that has been part of the Lubicon Cree since time immemorial to be accepted under article 27 ICCPR.89
Another feature of the Lubicon case is that Chief Omnyiak represented his people instead of bringing a claim by his people. This is one way that indingenous peoples have tried to enforce their group rights. He attempted to individually enforceing the collective rights of the group. Moreover, the HRCee confirmed in the same case that a group of individuals can
85 Optional Protocol to the International Covenant on Civil and Political Rights (adopted 19 December 1966, entered in to force 23 March 1976) 999 UNTS 171 (ICCPR-OP 1).
86 United Nations Human Rights Committee General comment No. 31 The nature of the general legal obligation imposed on States Parties to the Covenant, Hum. Rts Comm 80th sess, CCPR/C/21/Rev.1/Add.13 (2004) 9 87 Lubicon Lake Band v Canada [1990] HRCee Comm No 167/1984, 13.3.
88 ibid 32.1. 89 ibid 11.1.
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submit a communication collectively when each of them can prove that they are a victim of the alleged infringements.90 When trying to enforce rights for an entire people, having to prove victim status for every single member can be a barring feature.
In A.D. v Canada A.D., who was Grand Captain of the Mikmaq tribal society, tried to represent the Mikmaq people in front of the HRCee. A.D. alleged that article 1 had been violated by Canada. 91 His application was deemed inadmissible because the HRCee claims that A.D. did not prove that he had been authorised by the Mikmaq people to represent them.92 It is known that article 1 applications are never admissible according to the HRCee in the individual complaints procedures; however, the fact that A.D. was not allowed to represent his people, made that the merits of the case were never considered and shows a clear lack of access to justice of indigenous peoples..
In HRCee’s publication of General Comment 23, the HRCee recognises that indigenous peoples fall within the scope of article 27, by acknowledging that land rights for indigenous minorities can be of importance to the enjoyment of their culture, but continues to prevent the collective enforcement of article 27, by mentioning ‘persons belonging to minorities’ several times.93 The HRCee clearly acknowledges that group rights exist and that they need protection by mentioning the necessity for positive legal measures of protection and measures.94
3.1.4 United Nations Declaration on the Rights of Indigenous Peoples
The UNDRIP does not contain a complaints procedure because it is a non-binding declaration. Interestingly, it does contain an article on access to a fair trial. Article 40 of the UNDRIP states:
Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.
90 Lubicon Lake Band v Canada (n 87) 32.1.
91 A.D. v. Canada [1980] HRCee Comm No 78/1980, 2.1. 92 ibid 8.2.
93 United Nations Human Rights Committee General Comment on article 27, General Comment No. 23 U.N. GAOR, Hum. Rts Comm 50th sess at 9 UN Doc CCPR/C/21/Rev. 1/Add.9 (1994).
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The article and its wording suggests that the indigenous peoples have the right to enforce their individual and collective rights during an unspecified form of dispute settlement. It does not specify that an individual belonging to an indigenous people has the right to access complaints procedures, rather this is reserved for indigenous people at large. The text of the UNDRIP is very progressive, despite its non-binding character. It acknowledges that groups have standing during a complaints procedure to enforce their individual and group rights, which is regarded as a positive and progressive step for indigenous peoples. Regardless, the UN does not provide for a procedure in its own human rights system. The articles also leave ambiguous how states should implement access for indigenous peoples, if a special court or tribunal should be established by the state.
3.2 Regional Level
3.2.1 The Americas
The Organization of American States (OAS) has established the Inter-American Commission on Human Rights (IACommHR). The IACommHR interprets the American Declaration of the Rights and Duties of Man95 (American Declaration), of which all members of the OAS are party. It may also interpret the American Convention on Human Rights96 (American Convention) for the members that have ratified it. The American Convention also established the Inter-American Court of Human Rights. States need to recognised the jurisdiction of the IACtHR in a separate declaration.97 In 2016, after 17 years of consultation and 30 years of lobbying, the OAS adopted the American Declaration on the Rights of Indigenous Peoples.98 Collective rights enjoy a special position in this declaration.99 Important rights are the right to their own cultural identity and integrity to their cultural heritage;100 the right to the lands,
95 American Declaration of the Rights and Duties of Man OAS Res XXX adopted by the Ninth International Conference of American States (1948) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/II.82 Doc 6 Rev 1 at 17 (1992) (Inter-American Declaration).
96 American Convention on Human Rights OAS Treaty Series No 36 adopted at the Intern-American Specialized Conference on Human Rights, San José, Costa Rica (1969) 1144 UNTS 123 9 ILM 99 (1978) (American
Convention).
97 Moeckli (n 8) chapter 19.
98 American Declaration on the Rights of Indigenous Peoples (adopted at the third plenary session, held on 15 June 2016) AG/Res 2888 XLVI-0/16; Organization of American States, ‘A 17-Year Wait Pays off for Indigenous Peoples’ (OAS, 15 June 2016) < http://www.oas.org/en/media_center/press_release.asp?sCodigo=E-075/16> accessed 26 May 2017.
99 American Declaration on the Rights of Indigenous Peoples, art 6. 100 American Declaration on the Rights of Indigenous Peoples, art 10.
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territories, and resources that they have traditionally owned, occupied, used, or acquired;101 the right to self-determination102 and the right to self-identification as indigenous peoples.103 The IACtHR and the IACommHR are responsible for the interpretation of the American Declaration on the Rights of Indigenous Peoples in order to give content to the American Declaration and the American Convention.
Petitions to the IACommHR are addressed in article 26 of the Regulations of the Commission and in article 44 of the American Convention: ‘Any person or group of persons or nongovernmental entity legally recognized in one or more of the member states of the Organization may submit petitions to the Commission,[…] on one's own behalf or on behalf of third persons[…]’.104 The inclusion of “nongovernmental entity” and the possibility to submit petitions on behalf of a third person has opened up the complaints procedure for a plethora of applicants. The IACommHR and state parties who have accepted the jurisdiction of the IACtHR can commence proceedings.105
Both the American Declaration and the American Convention involve traditional individual rights, but the IACommHR has interpreted both instruments and other international instruments broadly to give the included individuals rights a collective dimension.
One of the most famously known decisions by the IACommHR on the protection of a group and their rights is the 1985 Yanomami v Brazil case.106 A group of individuals from several NGOs filed a petition on behalf of the Yanomami people collectively. The standing for these petitioners on behalf of a group was never questioned. The petitioners alleged that the building of a road by the Brazilian government through the ancestral lands of the Yanomami and the influx of developers and gold prospectors on the territory of the Yanomami was in violation of several individual rights recognised in the American Declaration: the right to life, liberty, and personal security; right to residence and movement; and the right to preservation of health and well-being.107 The Commission also mentioned the necessity for the preservation of their cultural identity and recognised this as a group right by stating that article 27 of the ICCPR clearly recognises the right of ethnic groups to special
101 American Declaration on the Rights of Indigenous Peoples, art 25. 102 American Declaration on the Rights of Indigenous Peoples, art 3. 103 American Declaration on the Rights of Indigenous Peoples, art 1.
104 Regulations of the Inter-American Commission on Human Rights, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 103 (1992) (Regulation of the Commission); American Convention, art 44.
105 American Convention, art 61
106 Yanomami v Brazil, Case 7615 Inter-American Commission of Human Rights Report No 12/85 (5 March 1985).
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protection on their use of their own language, practice of their own religion and preservation of their cultural identity. The IACommHR did not refer to the members of the ethnic group but to the ethnic group in its entirety.108 The reference to article 27 of the ICCPR was highly controversial, because at the time, Brazil was not a state party. The IACommHR later reiterates that the special protection of indigenous population is necessary for historical reasons and because of moral and humanitarian principles.109
In the following years, more claims were brought by NGOs on behalf of indigenous peoples without it being necessary that the group or people needed to file a petition themselves. It is not even necessary that all members of the group need to be identified for being a member of the group or as an individual victim.110 Moreover, the Commission also put a positive obligation on the states to safeguard their position as minority groups. Unfortunately, the recommendations made by the IACommHR are non-binding and therefore, legally weak.111 The IACtHR gives binding judgments but can only be petitioned by the IACommHR and therefore, locus standi is limited. However, several cases brought on behalf of indigenous peoples have been dealt with by the IACtHR.
The IACtHR ruled on the Mayagna (Sumo) Awas Tingni Indigenous Community v
Nicaragua case in 2001. The case was referred to the IACtHR by the IACommHR in 1998
and was the first case in which the court ruled favourably towards the rights of indigenous peoples. During proceedings, the indigenous community was represented by the chief of the community. The IACtHR recognised the right to property as defined in the American Charter as a collective right for indigenous peoples. The tie between the people and their land was necessary for their cultural survival. While article 21, the right to property, is an individual right, the Court decided it could be a communal right.112 The same reasoning of article 21 was followed in several other cases brought before the Court; e.g. in the Moiwana Community v
Suriname case and Saramaka v Suriname.
In 2007, the IACtHR decided on the Saramaka v Suriname case.113 The case was referred by the IACommHR and is about the property rights of the Saramaka people over their ancestral lands and the struggle against the mining and logging companies on their territory.
108 Yanomami v Brazil (n 106) 7. 109 ibid 8.
110 Report on Miskito Indians in Nicaragua; Report on the Situation of Human Rights in Nicaragua, petition of NGO on behalf of the Huaronani people in 1990.
111 Ketley (n 18) 352.
112 Mayagna (Sumo) Awas Tingni Indigenous Community v Nicaragua, Judgment Inter-American Court of Human Rights Series C No 66 (31 August 2001) 148
113 Saramaka People v Suriname, Preliminary Objections, Merits, Reparations, and Costs Inter-American Court of Human Rights Series C No 185 (12 August 2008).
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The IACtHR recognised their right to property under article 21 of the American Convention and granted the Saramaka a collective title over the disputed territory.114 Moreover, article 21 of the American Convention is interpreted consindering article 1 of the ICCPR and article 27 of the ICCPR, acknowledging that the right to property is a group right for indigenous peoples.115 This decision meant that Suriname had to change its laws to grant collective property rights. The IACtHR recognises the importance of the right to communal property over their lands and natural resources as a right; its necessity to secure effective enjoyment of other basic rights; and that their economic, social and cultural development is based on its relationship to the land.116 Suriname also neglected to recognise the collective juridical capacity of the Saramaka people, which is in breach of article 3 of the American Convention. This is a landmark case because the Saramaka are not indigenous to the region, but brought to Suriname during colonisation and are recognised as a tribal community sharing similar characteristics to indigenous peoples. They still have different traditions than the other sections of the national community and a special relation with their ancestral land, therefore, the IACtHR agreed that they should be subject to special measures that ensure the full exercise of their rights.117
The American human rights system has been historically very liberal towards the recognition of groups and communities and has set a precedent for other international tribunals. For example the African Commission of Human and Peoples’ Rights referred to the decisions of the IACommHR.118 The access to complaints procedures to protect their group rights is very well developed, albeit the petitions are on behalf of the people by an NGO or several NGOs. Moreover, not only indigenous peoples are recognised as having special rights; other minorities were granted the same recognition.
114 Saramaka People v Suriname (n 113) p 61. 115 ibid p 95.
116 Organization of American States, ‘Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources’(OAS, 30 December 2009) <
http://www.oas.org/en/iachr/indigenous/docs/pdf/ancestrallands.pdf> accessed 26 May 2017. 117 Saramaka People v Suriname, (n 113) p 78.
118 The African Commission on Human and Peoples’ Rights has referred to case law from the IACommHR and IACtHR in the Endorois case; ACommHPR, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya (2009) 27 AAR p 159-162
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3.2.2 Africa
The African Charter on Human and People’s Rights119 is the only regional human rights instrument that has an entire chapter aimed at the protection of the rights of peoples. 120 This inclusion can find its origin in the history of the continent. After years of colonial rule, peoples wanted to identify themselves as a people, not just as individuals. The focus on community, rather than the individual, is part of the African way of life; an individual is integral to its society and therefore those rights are protected.121
The ACHPR established the African Commission on Human and Peoples’ Rights (ACommHPR) and later, with a special protocol, the African Court on Human and Peoples’ Rights.122 The ACommHPR contains an individual complaints procedure. Article 48 of the ACHPR stipulates that state parties can bring communications against other state parties. Communications by other entities is stipulated in article 55.1 ACHPR:
Before each Session, the Secretary of the Commission shall make a list of the communications other than those of States parties to the present Charter and transmit them to the members of the Commission, who shall indicate which communications should be considered by the Commission.
The article continues to have a large degree of ambiguity about who can bring communications, ‘other than those of State parties’. Currently, the ACommHPR has confirmed that communications are limited to individuals and organisations even though there is no mention of any of the two in the article itself.123 Organisations can bring complaints on behalf of a victim if the victim has given consent. The ambiguity in the article could mean that in the future, communications could be brought by groups.
Representation before the ACtHPR is mainly restricted to communications by state parties or the ACommHPR.124 Another possibility is by NGOs with observer status and individuals, but only if a member state has made a declaration accepting
119 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter).
120 African Charter, arts 19-24.
121 Rachel Murray and Steven Wheatley, ‘Groups and the African Charter on Human and Peoples’ Rights’ (2003) 25/1 Human Rights Quarterly 213, 216.
122 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights (adopted 10 June 1998, entered in to force 25 January 2004) (the Protocol). 123 African Commission on Human and Peoples’ Rights, ‘Communications Procedure’ (ACHPR) < http://www.achpr.org/communications/procedure/> accessed 14 July 2017
124 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights (adopted 10 June 1998, entered in to force 25 January 2004) (the Protocol) article 5
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the competence of the court in receiving cases from these two groups.125 To date, only eight member states have made this declaration.126 NGOs are able to submit communications when they deem a country is guilty of mass or serious violations, also known as actio popularis cases. Indigenous peoples are excluded from these as such are left out, but they can be represented by NGOs. There are several cases regarding the violation of rights of groups that have been heard via communications lodged on behalf of indigenous peoples.
Two important cases in the region of Africa on possibility for groups to have standing in the protection of their rights are the Endorois case127 and the Ogiek case.128 The Endorois case was the first case about specific group rights in front of the ACommHPR and the Ogiek case is of importance because it is the first time that a case on behalf of an indigenous people was referred to the ACtHPR.
The Endorois people were forcibly evicted from their ancestral lands following the building of a game reserve by the government of Kenya in 1973 and 1978.129 The ACommHPR confirmed the violation of the rights to development, religion and culture. It is the first time that an international tribunal has found a violation of the right to development. The ACommHPR recognised the Endorois as a particular indigenous people and agreed that they had communal property rights for the lands that were taken.130 In the recommendations, the ACommHPR declared that the lands were the historical property of the Endorois community and should be returned to them, as should the access to Lake Bogoria for their religious and cultural rites and for grazing of their cattle.131 Interestingly, the Commission referred to decisions from the IACtHR to strengthen its decision.132 The IACtHR is a more evolved court regarding the protection of group rights. The decision in the Endorois case meant that for the first time the ACommHPR recognises group rights as drafted in the Charter
125 Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and People’s Rights (adopted 10 June 1998, entered in to force 25 January 2004) (the Protocol) article 5.3 in conjunction with article 34.6
126 Benin, Burkina Faso, Côte d’Ivoire, Ghana, Mali, Malawi, Tanzania and the Republic of Tunisia
127Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare
Council) v Kenya (2009) 27 AAR
128CEMIRIDE and MRG (On behalf of the Ogiek Community) v Kenya (n 12).
129 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare
Council) v Kenya (n 127) 3.
130 ibid 161. 131 ibid 80. 132 ibid 116.
