Exploring the connection between indigenous peoples' human rights and international environmental law - Núm. 9-2, Diciembre 2018 - Revista Chilena de Derecho y Ciencia Política - Libros y Revistas - VLEX 756112569

Exploring the connection between indigenous peoples' human rights and international environmental law

AutorMario Alejandro Delgado Galárraga
CargoLLM Global Environment and Climate Change Law. Assistant teacher in Universidad Metropolitana, Ecuador
Páginas96-156
REVISTA CHILENA DE DERECHO Y CIENCIA POLÍTICA
DICIEMBRE 2018 • e-ISSN 0719-2150 • VOL. 9 • Nº 2
RECIBIDO 31/03/2018 - APROBADO 14/11/2018
DOI 10.7770/RCHDYCP-V9N2-ART1468
Page 1 of 62
Exploring the connection between indigenous peoples’ human rights and
international environmental law
1
Mario Alejandro Delgado Galárraga
2
Universidad Metropolitana, Ecuador
Abstract. The paper reviews whether Indigenous People's worldview has directly influenced
or not the decisions made by the Inter-American Court of Human Rights related exclusively
to their human and environmental rights.
In the first section of the investigation, it is described the main aspects to take into
consideration regarding Indigenous Peoples and international law; i.e. conceptualization of
the term Indigenous Peoples, its evolution in international law, and their core rights. Then,
the text will deal with the relationship between Human Rights Law and International
Environmental Law, through the discussion of how human rights have been included in the
context of international environmental law.
Afterwards, the study will explore the close bond that exists between indigenous peoples and
the environment, by relating to the different conceptions of its features according to them.
Finally, the paper will analyse the decisions taken by the Inter-American Court of Human
Rights in cases related to indigenous people's environmental issues. The conclusion will lead
to determine the contribution of human rights and international environmental law to solve
indigenous people's controversies and vice versa.
1
The paper draws on my dissertation for the degree of LLM at Edinburgh Law School, 2016/17.
2
LLM Global Environment and Climate Change Law. Assistant teacher in Universidad Metropolitana, Ecuador.
madelgadoga@hotmail.com
REVISTA CHILENA DE DERECHO Y CIENCIA POLÍTICA
DICIEMBRE 2018 • e-ISSN 0719-2150 • VOL. 9 • Nº 2
RECIBIDO 31/03/2018 - APROBADO 14/11/2018
DOI 10.7770/RCHDYCP-V9N2-ART1468
Page 2 of 62
Keywords. Indigenous Peoples International Environmental Law Human Rights - Nature's
rights Inter-American Court of Human Rights
1. Introduction
Indigenous peoples (which will here be referred to as IP) are considered as a vulnerable
group in international law, mainly because of their lack of power and their inability to make
use of their rights or to prevent its violations.
3
This issue is accompanied by the increasing
need of a globalized world to obtain economic benefits through the exploitation of natural
resources, which mainly are found within their lands.
4
In addition, as noted by Anaya, ‘[h]istorical phenomena grounded on racially discriminatory
attitudes are not just blemishes of the past but rather translate into current inequities;’
5
which
demonstrates that IP’s rights violations have not been completely exterminated since colonial
times. In fact, these abuses explain the current organization of the world as part of the
modernity’s agenda.
6
However, IP have been gaining a significant place in international law during the last
decades. Human Rights Law (HHRR) has played a leading role regarding the development of
their rights. Furthermore, according to IP’s culture and customs, their ancestral worldview,
which exposes their relationship with the environment, is an essential issue to consider when
dealing with matters that might concern them.
7
Hence, contrasting HHRR and International
Environmental Law (IEL) will determine the contribution of these topics to the realization of
IP's rights.
In this context, the main subject, to be debated throughout this study, will focus on how IP's
rights have developed in the international arena, mainly regarding environmental themes; and
whether IP´s cosmovision has influenced, implicitly, in Court decisions. Hence, it will be
indispensable to narrow the discussion and centre it within the Inter-American Court of
Human Rights’ (IACrtHR) contribution.
3
INTERNATIONAL LABOUR OFFICE (1989) p. xi.
4
KINGSBURY, (2011) p. 545.
5
ANAYA (2004) p. 4.
6
ACOSTA (2013) p. 38.
7
Portal of Culture of Latin America and the Caribbean, ‘Kari-Oca Declaration and Indigenous Peoples´ Earth
Charter’ (2016) http://www.lacult.unesco.org/doccult/listado.php?uid_ext=&getipr=&lg=2> accessed 26
March 2018, Preamble
REVISTA CHILENA DE DERECHO Y CIENCIA POLÍTICA
DICIEMBRE 2018 • e-ISSN 0719-2150 • VOL. 9 • Nº 2
RECIBIDO 31/03/2018 - APROBADO 14/11/2018
DOI 10.7770/RCHDYCP-V9N2-ART1468
Page 3 of 62
The IACrtHR influence is of great consideration, as it has widened the participation of IP in
the international arena; its awards’ evolution demonstrates the importance given now by
international law to IP. Therefore, the Court’s case-law will portray whether it has taken into
account IP's worldview regarding the environment or it has dealt in a superficial way IP's
environmental beliefs.
2. IP and International Law
A wide range of IP exists around the world; they vary in identities and names. For example,
the Inuit in the Artic, the Maasai in Africa, the Mayas in North and Central America, the
Mapuches in Chile, the Huaorani in Ecuador, and the Saami in Northern Europe, to name a
few.
8
IP have different characteristics and features, hence, defining each of them will be a
challenging task; resultantly, a general definition within the framework of international law
will be considered for purposes of this study. Furthermore, the evolution of IP’s rights within
the international field will disclosure their long ongoing struggles.
9
The prior aspects are
essential to understand their surrounding context.
2.1. Conceptualizing IP
The term ‘indigenous peoples’ does not find an authoritative definition under international
law;
10
consequently, several international instruments attempted defining IP by assigning
specific features to them. For purposes of this research, the term IP will cover terms such as
tribal
11
and aboriginal
12
, as they are commonly used in the international field.
The International Labour Organization’s Convention Concerning Indigenous and Tribal
Peoples in independent countries (ILO 169) identifies IP as “peoples in independent countries
who are regarded as indigenous on account of their descent from the populations which
inhabited the country, or a geographical region to which the country belongs, at the time of
conquest or colonisation or the establishment of present state boundaries and who,
8
For an extended list see INTERCONTINENTAL CRY (201 7)
accessed 26 March 2018.
9
ANAYA (2004) p. 3.
10
UNITED NATIONS (2009) p. 4.
11
Convention concerning the Protection and Integration of Indigenous and Other Tribal and Se mi-Tribal
Populations in Independent Countries (ILO No. 107) (1959); Convention Concerning Indigenous and Tribal
Peoples in Independent Countries (ILO No. 169) (1991).
12
International Convention for the Regulation of Whaling (1948), Schedule, para. 13.

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