La più recente prassi internazionale, specie a partire dall’approvazione della Dichiarazione sui diritti dei popoli indigeni da parte dell’Assemblea generale delle Nazioni Unite nel 2007, ma anche in precedenza, in particolare colla Convenzione n. 169 dell’Organizzazione internazionale del lavoro, ha determinato l’emergere dei popoli indigeni come soggetto di diritto internazionale di tipo nuovo. L’Istituto di studi giuridici internazionali si dedicherà all’approfondimento della tematica, prendendo in particolare considerazione l’applicabilità del diritto all’autodeterminazione e le significative connessioni, che sono di estrema attualità, colla questione ambientale, oltre che coi diritti umani in genere.
L’appunto allegato, a cura di Giada Giacomini, evidenzia in modo sintetico taluni nodi problematici della questione.
The legal subjectivity of indigenous peoples in international law
Indigenous peoples are recognized as subjects of international law by several legal instruments with binding nature. The area of legal subjectivity of indigenous peoples is in continuous expansion thanks to a multitude of developments that have taken place in the past 40 years. The recognition of the right to self-determination of indigenous peoples has marked such an expansion, being crucial for their legal entitlement to a special protection regime under international human rights law and environmental law. However, the nature, scope and legal significance of the self-determination right that specifically applies to indigenous peoples remains highly disputed because of the crucial connotations it would assume in national contexts.
One of the contented matters around the self-determination right relates to the issue of the definition of the term “indigenous peoples” as recipients of such right. However, there is no universally accepted definition of the term, since the fundamental criteria identifying an indigenous people – as recognized in the 1986 Martinez Cobo – study relies on self-identification. The importance of self-identification has also been backed by international instruments such as the International Labour Convention n. 169 (1989) and has also been advocated by indigenous peoples themselves. The UN Declaration on the rights of Indigenous peoples (2007) also refrains from giving a definition, but instead emphasizes the cruciality of the right to self-determination. In addition to self-identification, the criteria of traditional possession and occupation of ancestral lands, together with the spiritual connection to the territory, contributes in the identification of an indigenous people.
Indigenous peoples rights are also protected by the international regime for biodiversity conservation with particular regard to access to traditional knowledge and benefit sharing (Convention on Biological Diversity and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization). Indigenous peoples’ rights are also acknowledged in the Paris Agreement in the context of climate change as common concern of humankind, while indigenous knowledge should inform climate adaptation and resilience strategies alongside western science. At the regional level, the Escazu Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean aims at protecting the rights of indigenous peoples in the implementation of its dispositions.
In addition, indigenous peoples’ rights are protected by a multitude of soft law instruments, such as the World Bank Group’s Environmental and Social Standards n. 7, the Green Climate Fund Indigenous Peoples Policy and the Safeguard of the Asian Development Bank, which specifically address the right to Free Prior and Informed Consent in the implementation of projects and initiatives in indigenous territories.
The proposed investigation project aims at giving a thorough and complete overview of the international legal instruments intended at recognizing the legal subjectivity of indigenous peoples, analysing important case law of national and international courts such as the Inter American Court on Human Rights, the African Court on Human and Peoples’ Rights and the European Court on Human Rights. Such analysis considers legal and juridical historical perspectives in the formation and development of international provisions, addressing not only positivistic conceptions of the law but also instances of indigenous traditional knowledge and customary law.
Indigenous peoples and climate change: the Yanesha people’s case from a participatory justice perspective, Giada Giacomini, in Diritto e processo – ISSN 1722-1110. – (2019), pp. 383-410.