Law and Justice for the Indigenous

The indigenous people of the world have been subjected to longstanding abuses of basic human rights with little opportunity for legal redressal till date. The very first challenge that comes up is ‘defining’ the indigenous populace since no international organisation or legal instrument has a definition that is set in stone. A more accurate and acceptable way is identifying who the indigenous are; keeping in mind the following criteria which are universally applicable: tracing of ancestry prior to Western colonialism or any other form of invasion, perspicuously different social, cultural, political and economic system, distinct language and belief systems, a strong tie to the natural environment of their inhabitance, a collective consciousness of shared identity of being a minority and a desire for the continuance of such distinction, thereby opposing  assimilation to the mainstream society. Though the decolonisation movement after the Second World War led to the apparent expulsion of alien rule, the indigenous people were not the recipients of rights and protection that entailed independence. Some of the key issues that affect them even today are inadequate representation in political, economic and legal institutions of the nation, displacement and alienation from their natural surrounding for the sake of projects of development initiated by the government, leading to a loss of cultural identity and the right to self-determination. The sentiment of deprivation and the inadequate national action has motivated them to seek a place in modern international law. The adoption of the 2007 UN Declaration on the Rights of the Indigenous Peoples is the landmark advancement when it comes to addressing their rights and issues. The International Court of Justice (ICJ) has been seen to espouse the right to self-determination as a universal principle, to which even the indigenous are entitled. In the Western Sahara case, the ICJ in 1975 held that the indigenous population, the Sahrawi, is entitled to self-determination and that Morocco’s claim to external sovereignty stands baseless. Despite the court’s advisory opinion, the Sultan of Morocco claimed that his supporters of thousands would march to Western Sahara and occupy its territory. Fearing this outcome, the Spanish who had colonised Western Sahara since 1884 decided to leave the territory to the Moroccans and Mauritians. The Mauritians recognized the sovereignty of the Sahrawi after four years of war in 1979. Morocco till date colonises Western Sahara and sees it as an integral part of its national territory; denying the people their right to self-determination.  However, in the conflict over the Aouzou Strip between Chad and Libya, a dissenting voice raised the issue that the court should have given more weight age to the voice of the indigenous people inhabiting the strip, and not the treaty signed by France and Libya in 1955. The Inter-American Court of Human Rights in its milestone judgment in The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 had adjudicated that the people of the Community are entitled to judicial protection in the face of the violation of their right to property by the State. The State was obliged to carry out the delimitation, demarcation, and titling of the corresponding lands of the members of the Mayagna (Sumo) Awas Tingni Community and have their right to the land restored.  The decision illustrates the need for the indigenous to reach out to the international legal community and have their grievances redressed which will be tested time and again; especially in light of the controversial Belo Monte Dam case. Despite strong opposition to the building of the Belo Monte dam, the Brazilian government had gone ahead with its construction since 2011.  The IACHR in 2011 had authorized precautionary measures inhibiting violation of the rights of the indigenous hitherto inhabiting in the vicinity of the dam, which the State failed to comply with. Earlier in January 2016, the IACHR had agreed to reopen the case on these grounds. On January 20th,  2016 the Brazilian federal court had ruled in favour of the displaced indigenous masses by suspending the dam’s license and levying a fine of 900,000 reais. Though it is a highly welcome move, many opine that it is not the first time the government has come across legal hurdles. It plans to have the damn operational by 2019. The recognition, redressal and enforcement of rights of the indigenous is thus a long drawn battle that requires the ardent support of international law. Written By: Dikshita Baruah, a student of GLC, Mumbai as part of Internship Program
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