Indigenous Peoples, Constitutional States and Treaties or Other Constructive Arrangements between Indigenous Peoples and States

By René Kuppe; Richard Potz | Go to book overview

THE EMERGENCE OF CUSTOMARY
INTERNATIONAL LAW CONCERNING THE
RIGHTS OF INDIGENOUS PEOPLES

S. J. Anaya

Largely as a result of their own advocacy at the international level, indigenous peoples are now distinct subjects of concern within the United Nations, the Organization of American states, and other international institutions. While the terminology of indigenous peoples remains contested, it nonetheless has become widely used. In general, the term indigenous is used in association with groups that maintain a continuity of cultural identity with historical communities that suffered some form of colonial invasion, and that by virtue of that continuity of cultural identity continue to distinguish themselves from others.

It can hardly be disputed that, through their efforts over the last three decades especially, indigenous peoples have been able to generate substantial attention to their demands among international actors. This can be seen in several concrete developments, including ongoing discussions aimed at adoption of declarations on the rights of indigenous peoples by the United Nations and Organization of American States. These discussions among representatives of states and of indigenous peoples now center on drafts documents that were produced by specialized UN and OAS bodies. Thus far the discussions have proceeded sluggishly, with states resisting much of the language in the drafts on the grounds that it goes too far, while many indigenous representatives and their advocates remain insistent that the drafts be adopted in their current formulations or without any change that would weaken the articulated standards.

But despite the gap in positions over the draft declarations, the multilateral discussions that have been proceeded in relation to the proposed declarations over several years have helped to generate a discernible consensus on core principles of indigenous peoples’ rights. This consensus is further evident in the multiple other developments of the last two decades within international and domestic venues. This is not to say that the level of consensus on indigenous peoples’ rights is entirely satisfactory or that there is a sufficient commitment by authoritative actors to implementing that consensus. But it is important to understand that such a consensus exists, however much it may still be in its early stages of development, lest

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