Where to next? Advancing Indigenous cultural rights within a ‘universal’ human rights framework
Creators: name: MUNRO, ANDREW
Publisher: name: LJMU Student Law Journal
Year: 2020

description: International law underwent a major shift when the second World War ended; the creation of the United Nations (UN) led to a system based upon human rights. The UN Charter, which affirmed support for equal rights and self-determination, was adopted in 1945, followed by the Universal Declaration of Human Rights (UDHR) in 1948. A number of binding treaties were ratified in the years that followed, most notably the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in 1966. This shift, together with the first explicit endorsement of self-determination, (defined as the freedom of a group of people to choose a political status and pursue development ) led to the demise of colonial powers dominating entire peoples and the creation of a number of new states. Indigenous peoples, effectively trapped within the borders laid down by their colonial oppressors, were largely left out of this. Indigenous peoples, broadly defined as tribal groups that have been somewhat engulfed by settler states, have often been left at a severe disadvantage by this subjugation. They make up about 5% of the world population but 15% of them exist in extreme poverty. The human rights of Indigenous peoples had long been treated as a domestic matter for the states in which their territory fell. This often had disastrous consequences, particularly in terms of their culture and socio-cultural human rights. Forcible attempts were made to assimilate Indigenous peoples in Canada, for example, through the state-sponsored residential school system, in which children were separated from their families, and housed in inhumane conditions. They were ‘educated’ as a means to stamping out Indigenous culture, whilst transferring the children onto the lower rungs of the economy. This practice continued for over a century and, along with other government policies, has been termed a cultural genocide. An international Indigenous rights system has developed during that time frame, however. There are now a number of international agreements and treaties that concern Indigenous peoples, most notably the UN’s Universal Declaration on the Rights of Indigenous Peoples (UNDRIP). Whilst this has brought necessary attention to the plight of Indigenous peoples, it is not regarded as a fix-all solution. General Assembly President Sheikha Haya Rashed Al Khalifa has warned that ‘even with this progress, Indigenous peoples still face marginalization, extreme poverty and other human rights violations. They are often dragged into conflicts and land disputes that threaten their way of life and very survival.’ This article argues that these clashes have, to an extent, undermined the protections of Indigenous rights, and whilst Indigenous peoples are now recognized by the international human rights regime, they continue to be marginalized. There are fundamental disagreements between several states, not least Canada, and the international Indigenous rights regime. Some of these are ideological, owing to the nature of Indigenous cultural rights themselves and to their uncomfortable fit within the international, ‘universal’ human rights regime that has been prominent since 1945. Other problems are more practical, stemming from the profound clashes between Indigenous cultural beliefs and the more Eurocentric values that tend to underpin modern, Western political and economic systems. A critical examination of the international Indigenous rights system is presented here, with Canada used as a case study. The background and development of the international Indigenous right system is outlined and explained, and its evident strengths and weaknesses briefly described. The article then examines ideological clashes between Western conceptions of human rights and Indigenous rights: self-determination, cultural, and land rights, as well as the collective nature of Indigenous rights. The practical incompatibilities between Indigenous peoples in Canada, and Canada as a sovereign settler state are then evaluated. This will point to the conclusion that the cause of Indigenous peoples has been only marginally advanced by the international Indigenous right system and that the future is not particularly promising.
description: LJMU Student Law Journal, Vol 1 (2020): LJMU STUDENT LAW JOURNAL