A Non-Discrimination Approach to the Right to Land of Indigenous Peoples against a Sui Generis approach: Is It Possible in International Human Rights Law?
 

Kaito Suzuki
DCL Law, Faculty of Law,
Mcgill University,
845 Sherbrooke St W,
Montreal, Quebec H3A 0G4,
Canada
tdh92.14@gmail.com

 

This paper argues that the right to land of indigenous peoples is compatible with the right to non-discrimination in international law. Indigenous peoples have been identified as historically colonised subjects and the victims of land deprivation in international law.

Even though the right to land has been recognised as an established state practice, there are concerns regarding its incompatibility with the principle of substantive non-discrimination under international human rights law. This position gave birth to a sui generis approach, which tries to legitimise the treatment of indigenous peoples’ rights to land. This position has been adopted by some representative researchers in the area of the rights of indigenous peoples, such as James Anaya and Benedict Kingsbury. Nevertheless, this right to land can be understood as a part of international human rights law as a special measure which is taken against substantive non-discrimination. Such an interpretation will be possible especially by reconsidering the concept of specific rights, which have been understood as an exception of special measures. In other words, substantive non-discrimination should be dynamically interpreted according to the issues around sustainable cultural management and property rights, as typically represented by the 2007 United Nations Declaration on the Rights of the Indigenous Peoples (UNDRIP). This kind of argument inevitably requires discussions on the scope of substantive non-discrimination in international law itself. It will not only foster deliberations on the entitlement of right to land of similar actors like minorities and peasants but will also include discussions about the recognition of rights in other areas, such as women’s rights.

 

Human rights, indigenous peoples, right to land, substantive non-discrimination, special measures, Sui Generis approach.

 


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