Narrow Backdoor Entry: The Use of Cultural Integrity to Ground Indigenous Claims Under the International Covenant on Civil and Political Rights

Abstract

Rising as actors of and transcending objectification by international law, indigenous peoples explored and negotiated all avenues to enforce their land rights at a time when indigenous demand for international status flashed the morgana of secession inspiring pictures of atavistic irredentism, fragmented territories and watered-down sovereignty, and figurative salt waters between States and their indigenous populations. They filed cases before the Human Rights Committee (HRC) under Optional Protocol I raising self-determination claims as the umbrella for their land rights. Exercising extreme caution from a slip of the tongue tantamount to an affirmation of peoplehood of indigenous peoples which would foment fears of political instability and national security issues, the HRC serially dismissed their complaints as if adopting a template with the standard statement: “The Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated, but that these rights do not include those set out in article 1 of the Covenant.” What the HRC did was to mainstream a tangential approach by addressing land rights under article 27 where it could be shown that the land is necessary for the protection of indigenous cultural integrity. The force of the cultural integrity argument is felt on occasion especially in the domestic arena. In the HRC, it worked in Lubicon and Poma. As pointed out by Anaya, it “has developed to entitle indigenous groups to affirmative measures to remedy the past undermining of their cultural survival and to guard against continuing threats in this regard...” Veritably, invoking the right to culture to ground indigenous rights as a strategic riposte to Lubicon serves a pragmatic purpose. Yet, it is fraught with limitations as well as drawbacks. This paper asserts that as a foundation for indigenous land rights, article 27 is friable. The biggest draw back is that as a generic minority right, it disconnected from indigenous self-determination which is claimed to rectify historical injustices by addressing structural issues of power and authority and land control. While minority and indigenous rights intersect, the overlap does not respond to specific issues of indigenousness.