The Unique Rights of Indigenous Peoples
Dinah Shelton, 12 November 2012
Think Africa Press, Free Online Course on International Law and Africa

In this article, Dinah Shelton, Professor of International Law at the George Washington University and member of the Inter-American Commission on Human Rights, examines attempts to safeguard indigenous peoples’ rights in international law through international instruments; the jurisprudence of the African Commission on Human and Peoples Rights; and the Inter-American Commission and Court on Human Rights.

The article starts by recognizing that application of individual human rights through equal treatment ignores the very real differences between indigenous peoples and other minorities: these groups had pre-existing sovereignty and signed treaties to govern their relations with the outside world, but are no longer recognized as independent. In the international sphere, relevant ILO Conventions and the UN Declaration on the Rights of Indigenous Peoples are examined. In the African context, the author comments on the Endorois case and the 2006 Botswana case of Sesana and Others v. Attorney General, High Court. Noting that case-law from different regions, although not binding, can be called upon as an aid in interpreting rights, she stresses that the Inter-American system provides an important point of reference, starting from the 1985 case of Yanomami v. Brazil to more recent jurisprudence on land rights and the right to property, such as the case of Awas Tingni Mayagna (Sumo) Indigenous Community v. Nicaragua and the Yakye Axa v. Paraguay case.

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