The Interplay Between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime

Abstract

This is the published version of the paper.This version of the publication may differ from the final published version. Permanent repository link The Interplay Between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights RegimeMauro Barelli* ABSTRACTThe emergence of indigenous peoples' rights represents one of the most significant developments in the recent history of international human rights. The difficult and complex process that ultimately led to the recognition of these rights in international law has demonstrated that global and regional systems can increasingly interplay in the context of human rights development. By considering the parallel normative and political developments that have taken place at the global and regional levels, this article submits that the Inter-American, African, and European human rights systems made important contributions to the construction and consolidation of the global regime of indigenous rights.

People’s Voices on the Sustainable Forest Reform in the Democratic Republic of Congo

“…A concept of indigenous people has undergone several changes over the decades (see Barelli 2010). In general terms, the concept initially concerned the first peoples who lived in the territory.…”

The Production of Indigenous Land Rights: Judicial Decisions across National, Regional, and Global Scales

“…These cases reveal the significance of judicial decisions that “clarify” the existence and content of legal standards: they not only settle a dispute; they also state “what the law is” (Tanner , 988). Moreover, although the instruments deployed in the Maya Indigenous Communities and Awas Tingni cases span the spectrum from hard to soft law – encompassing ILO 169, as well as the draft UN and OAS declarations – both cases reveal hard and soft as relative categories, whose interaction may harden soft instruments (Boyle and Chinkin , 213; Barelli ). Rights incorporated into soft instruments such as the UN and OAS draft declarations, neither of which had received a vote at that time, were strengthened through their application as standards for implementing the hard property rights of the American Convention and the American Declaration.…”

“…Two aspects of the ruling were deemed especially significant: the determination that the property provisions of the UNDRIP embodied general principles of international law and the assertion that, having voted for the declaration, Belize was therefore obligated to respect the property provisions of its Article 26. These pronouncements propelled the Supreme Court ruling into international circulation, where it has been cited extensively as a “landmark decision,” a significant step in hardening the UNDRIP (Anaya , 104; Burger , 50; Stefania , 343; Barelli ; Daes ; Gilbert and Doyle ; Stavenhagen ). In reports Anaya prepared as UN Special Rapporteur on the Rights of Indigenous Peoples, an office to which he was appointed in 2008, he commended the Belize Supreme Court for using the declaration as an “interpretive guide” in the application of domestic law…”

“…Likewise, the content and basis of general principles are somewhat contentious: some jurists derive general principles from theories of natural law, while others apply positive law to define them as standards shared across national legal systems (Koskenniemi 1985). Further, institutions such as the UN General Assembly and implementing bodies for international conventions issue declarations and comments whose status is debated; while some legal theorists classify these documents as “soft” law in contrast to the “hard” law of treaties (Barelli ; Boyle and Chinkin ), others reject the hard–soft dichotomy to focus instead on the role such documents may play in defining the content of custom or general principles (Anaya ).…”

“…The writings of legal scholars are even more subsidiary, relevant only to the extent they are adopted by the governments of sovereign nations or international judicial bodies (Joyner ). However, despite this formal reality, international courts do establish and recognize precedents, often explicitly (Barelli ; Boyle and Chinkin ). Further, legal theorists argue cases before judicial bodies with the aim of gaining affirmation for their arguments regarding the content of the law.…”