Dr. Yousef T. Jabareen
excerpted from: Dr. Yousef T. Jabareen, Redefining Minority Rights: Successes and Shortcomings of the U.N. Declaration on the Rights of Indigenous Peoples, 18 U.C. Davis Journal of International Law and Policy 119 (Fall 2011) (240 footnotes omitted)
The development of minority rights legal frameworks and their entry into international legal discourse is relatively recent, and it is still unfolding. Simultaneously, these frameworks, and the rights enumerated therein, are increasingly implemented in countries in which substantial minorities exist. This development is significant, given that no international legal instrument fully dedicated to the rights of minority groups existed until 1992, with the entry of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities entered into force. The introduction of the 2007 United Nations Declaration on the Rights of Indigenous Peoples offers a richer understanding of minority rights from an indigenous perspective and on the individual and collective levels, but it has yet to be examined in depth.
The addition of a special indigenous rights framework into existing international minority rights law has changed the status of indigenous minorities under international law and constitutes a milestone in the development of discourse on minority rights. In order to advance the rights of indigenous communities worldwide, it is essential that the status of minority rights, and particularly indigenous rights, undergo close examination in order to formulate a contemporary, coherent legal framework that guarantees the full rights and effective protections of such groups. Indeed, the reading of the 1992 and 2007 declarations together provide a broad view and a fresh perspective on the rights of minorities who are also indigenous. Together, they address issues of special concern to indigenous peoples such as historical justice and land rights. Furthermore, they recognize that indigenous peoples require collective rights and the ability to determine their own affairs in order to preserve their own unique cultures and ways of life. In explaining the significance of these recent developments, the interpretation offered here will enrich international and comparative discourse on the rights of indigenous minority groups in deeply divided societies.
This article will critically examine and analyze the ways in which the 2007 Declaration on Indigenous Peoples has the potential to enhance the rights of indigenous peoples. First, it will provide background by discussing past definitions of minorities and indigenous peoples. The second section will examine the gradual development of international legal instruments as protections for minority rights. Third, the article will analyze the two major areas in which the 2007 Declaration contributes to minority rights. Specifically, these are in the realms of (1) the right to self-determination and autonomy, and (2) land rights as historical rights. Arguably, the 2007 Declaration's most significant advancement is its emphasis on collective rights and group-based autonomy, recognizing the crucial role these elements play in ensuring the continuation of indigenous peoples' unique identities and ways of life. Finally, the article will offer a critique of the 2007 Declaration by analyzing some of the many deficiencies that remain in the indigenous rights legal framework, including: (1) linguistic rights; (2) shared national symbols; (3) education; (4) effective participation in political decisions; (5) immigration and citizenship; and (6) redress and reparations.
Despite its weaknesses, the 2007 Declaration on Indigenous Peoples offers a significant contribution to international minority rights law. The provisions therein are essential to advancing indigenous individuals socioeconomically and politically while also enabling them to realize their group-based aspirations. Key legal tools and enforcement mechanisms, properly implemented, could create profound change in the lives of such groups, especially in the long-term. What is more important, however, is the 2007 Declaration's short-term impact; the passage of the Declaration sends the message that indigenous groups are equal in standing to dominant groups, that they are deserving of recognition as a group and that, despite their frequently maligned position in their respective societies, they are not forgotten by the international community.
Nevertheless, the additions to international law offered by the 2007 Declaration are not sufficient. Many indigenous peoples remain marginalized and require a comprehensive set of rights and protections. Therefore, it is important to identify ways in which existing protections in international law for indigenous peoples can be strengthened while also noting omissions to the current body of law. Indeed, just as international provisions advancing rights for indigenous peoples serve as positive reinforcement for bringing them closer to a state of equality with dominant populations, current oversights will perpetuate their inferior status. Overall, much progress is required for a full and comprehensive social transformation in the lives of indigenous peoples.