The Rights of Indigenous Peoples in International Law: Strategic Lessons from Latin America – A/Prof. Lucas Lixinski

It is well-known that when the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was being voted on in the United Nations General Assembly in 2007, only four states voted against it: the infamous CANZUS countries (Canada, Australia, New Zealand, and the United States). They have all since changed their position and shown varying degrees of support for the UNDRIP and what it contains.

It is noteworthy, however, that these are four developed countries with histories of English colonization and common law systems. The reluctance of these states to engage with the UNDRIP would suggest that other countries, more supportive of that process, would offer better lessons for strategic engagement. And yet, in Anglophone circles we tend to neglect the experiences of other parts of the world, particularly Latin America.

I highlight Latin America because it is home to a large proportion of the world’s indigenous peoples, and, having two main (and similar) colonial languages, it offers a somewhat accessible body of knowledge and experience. Within the region, countries (particularly the Spanish-speaking ones, the vast majority) often exchange best practices, and indigenous lawyers and activists learn from one another. But somehow that wealth seems to be missed by Anglophone scholars and activists.

This contribution therefore is about the challenges of translation, and I argue that, by not engaging with Latin American experiences in this area, we are missing out on a plethora of strategic possibilities and making our jobs as scholars and advocates for the rights of Indigenous peoples even harder. An important caveat on translation: I myself am not an Indigenous person, but, where I come from (Brazil), there are less concerns with non-Indigenous persons speaking about Indigenous rights, which is why I am comfortable engaging in this position of double translator.

In order to highlight the possibilities of strategic engagement, I particularly want to focus on the lesser known American Declaration on the Rights of Indigenous Peoples (ADRIP) of 2016. This document builds on nearly a decade of practice under the UNDRIP, and as such contributes to the way we could (and probably should!) tap into the strategic possibilities of international law for Indigenous peoples.

Self-determination and autonomy unsupervised by the state, or without it requiring the “granting” of rights by the state, are a central theme in the ADRIP. This document, like its UN counterpart, was very controversial, but it also enjoyed wide participation of Indigenous peoples in the drafting process. The first Draft of the Declaration was proposed by the Inter-American Commission of Human Rights, and states were subsequently given the opportunity to comment upon the Draft and propose amendments. As a result, all controversial language from the Declaration was eliminated, and its force and reach were weakened overall. Members of the Indigenous Peoples’ Caucus of the Americas — Indigenous Organisations which were heavily involved in the negotiations — have worked to restore the force of the document against fierce state opposition.

As they did with the UNDRIP, the United States voted against the text (ironically, by saying that implementing the UNDRIP should be the priority). Canada, who also voted against the UNDRIP, abstained by saying it had not been sufficiently involved in the process. But these countries’ positions, while significant for Anglophone literature, do not necessarily inform Latin American debates that I argue should be examined closely by Anglophone scholars and advocates.

Other than the US and Canada, the only other country that has made any reservations to the ADRIP was Colombia, and one of these objections was on the basis that the standards in the ADRIP went further than the Colombian domestic law with respect to Indigenous peoples’ rights regarding state decisions affecting them (Article XXIII(2)). Whereas both the jurisprudence of the Inter-American Court of Human Rights and Colombian domestic law uses the language of “consultation”, the ADRIP, as interpreted by Colombia, gives a right to “veto” (therefore, “consent”) in this area, using language identical to the UNDRIP (Article 19).

But the ADRIP also advances the UNDRIP text in meaningful ways. One of them is the language on treaties in the declarations. The UNDRIP has a clear provision on the importance of “the recognition, observance and enforcement” of treaties (Article 37(1)), as well as a saving clause saying the UNDRIP may not be interpreted in a way that diminishes the rights of Indigenous Peoples contained in existing treaties (Article 37(2)). The ADRIP, however, goes further. Its language on the recognition, observance and enforcement of treaties adds an interpretation rule, saying these treaties are to be interpreted “in accordance with their true spirit and intent in good faith and to have States honor and respect same. States shall give due consideration to the understanding of the indigenous peoples as regards to treaties, agreements and other constructive arrangements” (Article XXIV(1)). This language is not found in the UNDRIP. Another innovation is a provision on dispute settlement about the terms of treaties, also not to be found in the UNDRIP:

“When disputes in relation to such treaties, agreements and other constructive arrangements cannot be resolved between the parties, they shall be submitted to competent bodies, including regional and international bodies, by the states or indigenous peoples concerned” (Article XXIV(2)).

This much stronger language on treaties greatly benefits Indigenous peoples.

An important specificity of the ADRIP, that has no equivalent in the UNDRIP, is the provision on Indigenous peoples “in voluntary isolation or initial contact”, which acknowledges that, for some Indigenous peoples, the exercise of their autonomy may mean not engaging with the settler state at all. Because of its novelty, the provision deserves being quoted in full:

Article XXVI.

Indigenous peoples in voluntary isolation or initial contact

1. Indigenous peoples in voluntary isolation or initial contact have the right to remain in that condition and to live freely and in accordance with their cultures.

2. States shall, with the knowledge and participation of indigenous peoples and organizations, adopt appropriate policies and measures to recognize, respect, and protect the lands, territories, environment, and cultures of these peoples as well as their life, and individual and collective integrity.

Some have criticised the ADRIP for failing to follow the UNDRIP in some respects, and interpreted those deviations as weakening UNDRIP standards. One such instance is the provision on participation in decision-making affecting Indigenous peoples’ rights. Whereas the UNDRIP states that “[i]ndigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions” (Article 18), the ADRIP proclaims the right

 “to full and effective participation in decision-making, through representatives chosen by themselves in accordance with their own institutions, in matters which affect their rights, and which are related to the development and execution of laws, public policies, programs, plans, and actions related to indigenous matters” (Article XXIII(1) – emphases added).

The latter addition in the ADRIP language, in particular, is seen as creating a double threshold for participation, and restricting Indigenous input only to areas characterized as indigenous, as opposed to state action that has incidental impacts on Indigenous rights.

Even if that is the case (and the provision is still to be interpreted in this more restrictive way, which would fly in the face of the ADRIP’s article suggesting expansive interpretations – Article XXXV) the ADRIP still takes more steps towards self-government by Indigenous peoples than the UNDRIP, and it merits attention not only because it reflects Latin American practice, but also because it reflects the evolution of the UNDRIP in many important respects. To ignore this Latin American development in other parts of the world is to voluntarily narrow down the scope of strategic thinking about advancing Indigenous rights in international law.

Therefore, rather than fear translation, and the risk that nuance is missed, what we should be focusing on, in my opinion, is responsible engagement with the pathways of Indigenous struggles elsewhere in the world. Rather than us defining ourselves as scholars and advocates around the colonial languages imposed on them (the CANZUS grouping, the Latin American grouping), there is room, I believe, for scholars and advocates of Indigenous rights to learn from across the world.

Lucas Lixinski is an Associate Professor at the Faculty of Law, UNSW