Indigenous Rights and Democratic Rights in International Law: An 'Uncomfortable Fit'?

Abstract

Over the last 25 years, international recognition of the human rights of indigenous peoples has been increasing. One aspect of this recognition notes that existing, relevant human rights law has not been applied to their particular situations, such that indigenous peoples have not been accorded their full human rights. A second aspect is the recognition that the understanding of human rights laws has needed to develop, and that more specific, relevant standards have needed to be articulated. This paper is concerned with the recognition of indigenous claims to greater control over and participation in decision-making over their lives. Indigenous peoples point to the lack of such control and participation as a significant problem and an impediment for achieving indigenous peoples’ human rights. The need to address this lack of control has been recognized internationally and has resulted in the development of international guidelines for doing so. However, the guidelines do not yet fit easily with existing international human rights laws on participation in decision-making within states. This paper aims to describe this “uncomfortable fit,” and hopefully also how it might be overcome.

An assessment can be made of how well the emerging indigenous rights ‘fit’ with international human rights law, comparing law within the areas of indigenous rights and democratic rights. The indigenous rights do not yet fit within the standard interpretations of democratic rights, and there is thus a slightly “uncomfortable fit,” at least with respect to indigenous group rights to participation in political decision-making. There are, however, some positive illustrations of how such a fit might be made more comfortable so that indigenous peoples may be accorded their full human rights, and such illustrations will also be highlighted and examined.

Keywords: human rights of indigenous peoples, democratic rights of indigenous peoples