Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, Oxford Uni Press, 2014.
In Indigenous Peoples and Human Rights: International and Regional Jurisprudence, Ben Saul examines how Indigenous peoples have interpreted and adapted human rights standards to their unique experiences. The book begins by analysing the different approaches at international law for identifying who is ‘Indigenous’ before delving into the jurisprudence of UN human rights treaty bodies and regional human rights bodies. It concludes with a brief overview of future implementation challenges for Indigenous peoples and human rights.
Saul starts with an analysis of how Indigenous peoples are identified at international and regional law. A difficult question with no definitive answer, it occurs at many different levels and contexts, and involves a wide range of communities and groups. Nevertheless, in most cases who is Indigenous is not a controversial question, though Saul is careful not to dismiss the difficult struggles for recognition still occurring in many countries. The main focus of the book, however, is the struggle over the rights Indigenous people are entitled to under international and regional law.
At the international level Saul examines the jurisprudence of UN human rights treaty bodies and their use for Indigenous rights. The International Covenant on Civil and Political Rights (ICCPR) receives the most treatment with the right to self-determination found in Article 1 being adapted by the ICCPR Human Rights Committee for the specific circumstances of Indigenous issues. However Article 27 of the ICCPR, the right of minorities to enjoy their own culture, has been the right most often raised with respect to Indigenous issues. Due to the lack of Indigenous-specific rights, Indigenous peoples have used minority rights to make human rights claims. These cases have usually focused on traditional Indigenous economic and cultural attachments to land. Saul argues, however, that adapting the framework of minority rights for Indigenous issues is ultimately an imperfect solution and in practice the implementation has been cautious.
Though used less, other UN human rights treaty bodies, such as the UN Committee on Economic, Social and Cultural Rights and the UN Committee on the Elimination of Racial Discrimination have nevertheless dealt with Indigenous issues. Rights to culture and self-determination have been dealt with by the former whereas the latter has dealt with issues of discrimination, the lack of recognition of Indigenous groups and access to justice issues. The Committee on the Elimination of Discrimination Against Women, the Committee on the Rights of the Child and the Committee Against Torture have also dealt with Indigenous issues within their specialty areas.
Following the above analysis of Indigenous rights at the international level, Saul moves to the regional plane, focusing on how the Inter-American and African human rights systems protect Indigenous rights. The protection of property and resource rights, along with cultural, socio-economic and civil rights are all examined in turn. Throughout these sections Saul suggests that the American and African regional systems have gone further than the UN treaty bodies in protecting Indigenous interests. Whereas the international system is abstract and ambiguous Saul argues that the regional systems offer a certain detail and clarity to Indigenous rights.
Indigenous Peoples and Human Rights: International and Regional Jurisprudence is a thorough and well researched analysis of the use of human rights by Indigenous peoples. Though perhaps overly academic for the casual reader, its subject matter makes it useful to anyone interested or involved in Indigenous rights. More broadly, the book can be viewed as an example of how human rights jurisprudence has been influenced, affected and used by a specific group. This makes it useful for those interested in adding a human rights based approach to their argument as well as those practicing generally in human rights.
Kevin Jackman completed his Practical Legal Training at the HRLC.