A review of Mauro Barelli’s:
In an article titled “The Interplay Between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime,” author Mauro Barelli documents the recent emergence of the global indigenous rights regime (IRR), and argues that the regime benefits both the regional and global systems of human. His article makes the argument that Inter-American, African, and European human rights systems advanced and supported the development of indigenous human rights. IRR is a “sui generis regime,” Barelli says, and thus it should be “increasingly looked at” (Barelli, 952). Barelli’s article is organized in five sections (which includes the introduction and conclusion). For the point of this analysis, we can pass over the introduction and conclusion, and analyze the main body of his article.
Section II, “Emergence of Indigenous People’s Rights,” establishes the historical context in which to understand the Indigenous Rights Regime. Barelli argues that the “interaction between international and regional institutions in the context of indigenous people’s rights must be discussed with an analysis” (Barelli, 953). He suggests that the UN human rights system has in recent years focused on the issue of IRR, and eventually this focus led to a “sui generis regime” (Barelli, 953). Barelli asserts this happened because of three key stages:
1) A 1970 study conducted by the UN’s Sub-commission on Prevention of Discrimination and Protection of Minorities (Barelli, 953). 2) ILO Convention No. 169, drafted by the Working Group on Indigenous Populations (WGIP) which provided “broad identification of the normative framework for which to understand IRR” (Barelli, 954). 3) The adoption of a “UN Declaration on the Rights of Indigenous Peoples” (Barelli, 956). The UNDRIP was not passed without criticism though from UN members.
The first major concern was the “Issue of Definition” (Barelli, 957). Barelli points out that “several states emphasized the necessity of creating and including a definition (of IRR) in the document” (Barelli, 958). Without a definition, states worried about the lack of meaning behind the concept of IRR. Asian and African states expressed that the concept of “indigenous peoples did not apply to their region” (Barelli, 958).
The second major concern was simple: the “right to self-determination” (Barelli, 959). States were not comfortable with indigenous people “right to self-determination,” as was written in UNDRIP (Barelli, 959). In fact most states feared “their sovereignty and territorial integrity would be seriously undermined” (Barelli, 959). Put simply, states were worried about the right to secession. This self-determination was a clause that indigenous peoples were unwilling to strike, as they saw it essential to their human rights. The solution came through a re-interpretation on the “internal aspect” of self-determination, not the right to secession (Barelli, 959).
The third concern was “land rights” (Barelli, 959). During the drafting of the UNDRIP, indigenous peoples insisted that “control of their lands was vital for the exercise of their right to self-determination as well as… survival” (Barelli, 959). States were concerned about Article 28 of the UNDRIP, which established the right to restitution or compensation for lands taken from indigenous peoples without consent. To simplify, the overall concern was that UNDRIP would create an opportunity for “conflicts between indigenous peoples and third parties that currently owned or occupied the disputed lands” (Barelli, 960).
In section III, titled “The Contribution to the Global Political Process,” Barelli argues that IRR and UNDRIP benefited greatly from regional human rights systems: “regional systems both strengthened the global political process of recognition of indigenous rights and contributed to the legal process of clarification and interpretation of the relative normative content” (Barelli, 961). Beginning in the 1980’s, IRR began to take form, and gained momentum in the 1990’s. In a way, Barelli suggests, IRR rode regional human rights toward increasing exposure.
Within the Inter-American System, groups like the Organization of American States (OAS) and the Inter-American Commission on Human Rights helped give recognition to the IRR. “In 1989 the Inter-American Commission was entrusted by the OAS General Assembly with the task of preparing (an)… instrument relative to the rights of the Indian peoples” (Barelli, 962). After that, the UN WGIP drafted the UNDRIP. After the UNDRIP had passed, within the Inter-American System unique “parallel developments” continued between regional and global human rights (Barelli, 963). Similar developments happened within the African system as well.
“The gradual involvement of the African human rights system with indigenous issues was… inspired by the developments taking place at the global level” (Barelli, 964). In 2000 the African Commission established the Working Group of Indigenous Populations in Africa (WGIPC). The African Commission began expanding the role of the WGIPC, and started to seriously pay attention to indigenous representatives. The WGIPC also partnered with the ILO on the “Promotion of Indigenous People’s Rights…” (Barelli, 966). The openness of Africa to develop a “comprehensive approach” to IRR had important consequences on the global level (Bareli, 966).
The European System had far less to offer IRR, as Europe holds a smaller “number of indigenous people” (Barelli, 967). However, the Framework Convention on the Protection of National Minorities (FCNM) shared a “broad legal area” with indigenous groups (Barelli, 966). The committee responsible for implementing FCNM stressed “recognizing a group of persons as an indigenous people does not exclude persons belonging to that group from… protection” (Barelli, 968). The European Union also developed a “specific policy with regard to indigenous peoples” (Barelli, 969).
Section IV: “The Contribution to the Legal Processes of Clarification and Interpretation,” starts by helping clarify legal interpretations. “Contrary to the views expressed by a number of states, the final decision (UNDRIP) was made to omit a definition of indigenous peoples” (Barelli, 971). However, other regional groups helped establish a working definition, as well as clarified other vague and ambiguous concepts inside UNDRIP. The WGIP helped develop a definition of indigenous by summarizing “indigenous should suggest special attachment to and use of traditional land… as well as subjugation, marginalization, and dispossession” (Barelli, 971). As far as fear of self-determination of indigenous peoples, the African Commission took lead in convincing worried states that “concept of self-determination has evolved since… decolonization…and that it is compatible with the unity and territorial integrity of states” (Barelli, 974).
Barelli notes that when it came to issues of land rights, the IACHR promoted an “extensive interpretation of this provision taking into account the most recent international normative developments” (Barelli, 975). The IACHR argued that indigenous groups are characterized by a “traditional collective form of organization, a spiritual relationship with their ancestor lands, and a communal system of ownership of the said lands, and are entitled to…protection” (Barelli, 976). Even further too, the IACHR claimed that the indigenous person uses their land ownership as “cultural identity,” which is a “basic right” (Barelli, 977).
Barelli does a very good job of providing the reader with enough historical context to grasp his points surrounding the “evolution” of IRR (Barelli, 953). He outlines both the emergence and evolution, which are two distinct concepts. He also does a fairly good job in analyzing the relationships that IRR has with regional human rights groups. Barelli shows how two major events had a major development effect on indigenous rights: WGIP initiative and the ILO’s desire for a new IRR instrument (Barelli, 954). These were no doubt major forces in IRR development.
Barelli makes a convincing argument for the benefit of regional rights on global human rights. While this is not his main intention, he makes reference to many positive regional benefits that ultimately affected global human rights positively. He notes “regional systems’ capacity to contribute to the very construction and consolidation of global human rights” (Barelli, 960).
While Barelli forms strong ideas, I also see a few weak spots in his analysis. The biggest gap is a working definition of indigenous rights regime, or indigenous people for that matter. Eventually by the end of his paper Barelli has suggested that African HR have helped establish a definition, but within UNDRIP, “the final decision was made to omit a definition of indigenous peoples” (Barelli, 971). While the lack of a normative definition is not Barelli’s fault, writing an analysis on an undefined topic creates ambiguity and relativity. Barelli tries to draw a working definition from African documents on indigenous rights, but the definition is still not accepted in the UNDRIP, which is sort of the end goal. Even if pulling the definition from African Human Rights groups helped center the term, he does this at the very end of the document. Barelli should have at least found a way to introduce the term’s unofficial definition closer to the beginning of the document.
Barelli says in his conclusion that “regional rights systems can play a crucial role in strengthening the effectiveness of human rights…this will also hold true with regard to indigenous people’s rights” (Barelli, 979). This statement requires Barelli in some way to prove that indigenous rights can improve global human rights, which he hardly does. He certainly proves the benefit that regional systems have on IRR, but does not prove that indigenous rights improve global human rights.
I also found issue with Barelli’s reference to the “Western individualistic conception of human rights” and how that “clashed” with the IRR. Author Barelli describes indigenous rights as having a “collective” component. I think Barelli fails to prove this. While he suggests that the global human rights system is individualistic, he draws a correlation between the UN’s trouble to recognize IRR and how that stems from a collective vs. individualistic mind-set. I see indigenous rights as being somewhat individualistic as well, since there is no set definition and indigenous peoples tend to identify themselves as culturally separate from the rest of the state/region. They see themselves as unique, which creates an individualistic mind-set. The indigenous mind sees globalism and collectivism as colonialism, so why suggest that indigenous rights are a collective movement?
In conclusion, Barelli does a good job highlighting the historical roots that the indigenous rights regime has in international and regional human rights development. He makes a strong argument for the benefit of regional human rights on global human rights. His article is not without weak points though; he tries to define a definition-less concept, prove that the global human rights system benefits from IRR, and that indigenous rights are a collective movement. He does well to call for more analysis on the subject of indigenous rights, and overall suggests “political and legal initiatives taking place at the regional level can have an important effect on the emergence of new global human rights regimes (like IRR)” (Barelli, 979).
Barelli, M. (2010). The Interplay Between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime. Human Rights Quarterly, 32(4), 951-979.