Published online by Cambridge University Press: 04 February 2015
Despite a noticeable shift in recent years, indigenous peoples in Asia continue to experience many forms of human rights violations, with the most serious perhaps being the loss of traditional lands and territories. The purpose of this paper is to examine indigenous peoples’ land rights and its application in Southeast Asia. To that end, the paper will provide an overview of the development of indigenous peoples’ land rights internationally; offer regional perspectives from the Inter-American Court of Human Rights and the African Commission for Human and Peoples’ Rights; analyze the concept of indigenous peoples in Asia, juxtaposing it with concurrent difficulties being experienced on the African continent; examine three countries (Cambodia, the Philippines, and Malaysia) that recognize indigenous peoples’ land rights to some extent, whether through constitutional amendments, legislative reform, or domestic jurisprudence; and highlight the implementation gap between the rights of indigenous peoples in law and practice.
Researcher and PhD Candidate, Faculty of Law and Criminology, Department of International and European Law, Vrije Universiteit Brussels. A shorter version of this paper was presented at the 4th Biennial Conference of the Asian Society of International Law (Student Workshop), 13 November 2013, New Delhi, India. This research has been funded by the Interuniversity Attraction Poles Programme initiated by the Belgian Science Policy Office, more specifically the IAP “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective” <www.hrintegration.be>.
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1. In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.
2. The use of the term “lands” in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.
1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.
1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.
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119. Ibid., at para. 149.
120. American Convention, supranote 111:
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127. Ibid., at paras. 78–86.
130. Ibid., at para. 96.
131. Ibid., at paras. 99 and 115.
133. Ibid., at paras. 99–103 and 115.
134. Ibid., at paras. 126–9.
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137. Ibid., at paras. 55, 61, and 62.
138. Ibid., at para. 160.
139. Ibid., at para. 178.
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144. In both of these cases the determining the “indigenousness” of the plaintiffs played a central role. While it is beyond the scope of this paper to deal with this issue in detail, the following section will be devoted to exploring “indigenous peoples” as a contested concept and will refer to current debates on the African continent.
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2. In no case shall a people be deprived of it. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law.
4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.
5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.
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The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.
162. Ibid., at Part I, chapter I:
1. Every individual shall have the right to education.
2. Every individual may freely, take part in the cultural life of his community.
3.The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State.
163. Ibid., at art. 21.
164. Endorois, supra note 143, at paras. 185–7.
165. Ibid., at paras. 193–6.
166. Ibid., at paras. 211–12.
167. Ibid., at para. 228.
168. Ibid., at paras. 260–6.
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190. Ibid., at 280–1.
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198. Ibid., at paras. 10, 12–13.
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208. Ibid., at 352.
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211. Ibid., at 26.
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217. Stavenhagen, ibid.
218. Anaya, supra note 216 at para. 7.
219. Stavenhagen, supra note 216 at para. 9. See also Anaya, supra note 216 at para. 8.
220. Anaya, supra note 216 at paras. 11–20. James Anaya's predecessor, Rodolfo Stavenhagen, also noted the following in 2007: the loss of indigenous peoples’ lands and territories; the situations of forest peoples; and the forced relocation and international resettlement. See Stavenhagen, supra note 216 at paras. 10–29.
221. From the region, Bangladesh abstained.
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225. Ibid., at 353.
227. Ibid., at 354.
228. Ibid., at 351.
229. Relevant provisions include art. 32, which reads: “Khmer citizens shall be equal before the law and shall enjoy the same rights, freedoms and duties, regardless of their race, color, sex, language, beliefs, religion, political tendencies, birth origin, social status, resources and any position.”
230. BAIRD, Ian G., “The Construction of ‘Indigenous Peoples’ in Cambodia” in Leong YEW, ed., Alterities in Asia: Reflections on Identity and Regionalism (London: Routledge Publishers, 2011)Google Scholar, 158.
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234. Xanthaki, supra note 107 at 478. See specifically, Cambodian Land Law (2001), arts. 26 and 27, online: <http://www.gocambodia.com/laws/data%20pdf/Law%20on%20Land/Law%20on%20Land,%202001(EN).pdf>.
235. Ibid., at 297–8.
236. Ibid., at 298.
237. Ibid., at 299.
238. Cambodia Office of the High Commissioner for Human Rights, “Economic Land Concession in Cambodia: A Human Rights Perspective” (September 2013), online: OHCHR <http://cambodia.ohchr.org/WebDOCs/DocReports/2-Thematic-Reports/Thematic_CMB12062007E.pdf> at 1.
239. MOLINTAS, Jose Mencio, “The Philippines Indigenous Peoples’ Struggle for Land and Life: Challenging Legal Texts” (2004) 21 Arizona Journal of International and Comparative Law 269 at 271Google Scholar.
244. Ibid., at 283–4.
245. Ibid., at 284–5.
246. Ibid., at 284–7 and 290.
247. Ibid., at 291–2.
248. Ibid., at 273.
249. 1987 Constitution of the Republic of the Philippines, online: <http://www.gov.ph/the-philippine-constitutions/the-1987-constitution-of-the-republic-of-the-philippines>.
250. Indigenous Peoples’ Rights Act of 1997, online: <http://www.gov.ph/1997/10/29/republic-act-no-8371/>.
251. Supra note 249 at art. II, s. 22.
252. Ibid., at art. XII, ss. 4–5.
254. Ibid., at art. XIV, s. 17.
255. “Country Profile: The Philippines” in Erni, supra note 224 at 428–9.
256. Ibid., at 429.
257. Ibid., at 429. See also Molintas, supra note 239 at 291.
259. See, for example, Mission to the Philippines, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo STAVENHAGEN, UN Doc. E/CN.4/2003/90/Add.3 (2003) at paras. 22–3.
260. Molintas, supra note 239 at 294 and 297.
261. Supra note 255 at 429.
262. Stavenhagen, supra note 259 at para. 18.
263. Ibid., at para. 14.
267. IDRUS, Rusaslina, “From Wards to Citizens: Indigenous Rights and Citizenship in Malaysia” (2010) 33 Political and Legal Anthropology 89 at 93Google Scholar.
269. 1957 Federal Constitution of Malaysia, online: <http://www.agc.gov.my/images/Personalisation/Buss/pdf/ Federal%20Consti%20(BI%20text).pdf>.
270. “Country Profile: Malaysia” in Erni, supra note 224 at 404.
271. Idrus, supra note 267 at 94. See also HE, Baogang, “The Contested Politics of Asian Responses to Indigenous Rights” (2011) 18 International Journal on Minority and Group Rights 461 at 468Google Scholar.
272. He, supra note 271 at 468.
273. Cheah Wui LING, “Sagong Tasi and Orang Asli Land Rights in Malaysia: Victory, Milestone or False Start?” (2004) 8 Law, Social Justice and Global Development Journal 1 at 5.
274. Idrus, supra note 267 at 94.
275. Ibid., at 94–5.
276. Ibid., at 95.
279. Ibid., at 5.
281. Sagong Tasi & Ors v. Kerajaan Negeri Selangor & Ors  2 C.L.J. 543 [Sagong Tasi].
283. Ibid., at 10.
287. See Sagong Tasi, supra note 281 at para. 11(3).
289. MIKKELSEN, Cæcilie, ed., The Indigenous World 2010 (Copenhagen: IWGIA Publishers, 2011)Google Scholar at 347.
293. See 1957 Federal Constitution of Malaysia, supra note 269 at art. 161(A), para. (5): “Article 89 shall not apply to the State of Sabah or Sarawak, and Article 8 shall not invalidate or prohibit any provision of State law in the State of Sabah or Sarawak for the reservation of land for natives of the State or for alienation to them, or for giving them preferential treatment as regards the alienation of land by the State.”
294. Supra note 270 at 405.
297. Supra note 270 at 405.
298. Ibid., at 406.
301. “Country Profile: Malaysia”, supra note 270 at 406.
304. Association of Southeast Asian Nations Human Rights Declaration, 18 November 2012, online: ASEAN <http://www.asean.org/news/asean-statement-communiques/item/asean-human-rights-declaration>.
305. International Work Group for Indigenous Affairs, “Indigenous Peoples Statement on the ASEAN Human Rights Declaration” (February 2013), online: <http://www.iwgia.org/iwgia_files_news_files/0740_IP_State ment_on_ASEAN_HR_Declaration_ENG.pdf>.
306. HARRIS, Seth, “Asian Human Rights: Forming a Regional Covenant” (2000) 1 Asian-Pacific Law and Policy Journal 1 at 13–16Google Scholar.
307. The Paris Principles set out the minimum standards required by national human rights institutions to be considered credible and to operate effectively. See Asia Pacific Forum, “Paris Principles” (September 2013) online: <http://www.asiapacificforum.net/about/members/international-standards>.
309. See Asia Pacific Forum, “Malaysia: Landmark Report on Indigenous Land Rights” (August 2013), online <http://www.asiapacificforum.net/news/malaysia-government-to-review-suhakam-report-on-indigenous-land-rights?searchterm=Indigenous>.
310. He, supra note 272 at 477.
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