UPDATE: Researching Indigenous Peoples International Law

By Christopher C. Dykes

Chris Dykes is the Head of Public Services at the University of Houston Law Center’s O’Quinn Law Library. He received his Juris-Doctor from the University of Baltimore School of Law and LL.M. in Taxation from Villanova University School of Law. He also holds a B.A. in Political Science and M.S. in Information Sciences from the University of Tennessee.[1]

Published January/February 2024

(Previously updated in July/August 2012, July 2015, and June 2019)

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1. Introduction

This article is designed to provide a foundation for researching indigenous international law by covering the definition of “indigenous peoples,” a brief history, key terms and issues, regional and international organizations including the United Nations, international documentation such as treaties, selected books and articles, online sources, and other secondary sources.

2. Indigenous Peoples

2.1. Definition of “Indigenous Peoples”

Historically there has been no single way to define indigenous populations, and the terms used often vary locally. For example, in Australia the indigenous groups are commonly referred to collectively as aborigines and in the United States, they are referred to as Indians or Native Americans. This can be problematic at the international level because it can make it difficult to negotiate and draft treaties designed to protect indigenous groups and can also complicate directives or policies by international organizations. Despite this complexity, in the past 50 years there has been a move toward a broad definition that is inclusive of various ethnic groups and appreciates the identity and heritage of each group.

In Indigenous Peoples in International Law, S. James Anaya defines the term “Indigenous” as referring “broadly to the living descendants of pre-invasion inhabitants of lands now dominated by others.”[2] The term “Peoples” largely refers to communities with an identity that connects them with their past ancestors.[3] International documents such as the Convention on Indigenous and Tribal Peoples, Convention No. 169 (1989) focus specifically on who is covered by the convention rather than trying to define “indigenous peoples.”[4] The World Bank issued Operational Directive 4.10 (2005), designed to replace Operational Directive 4.20 (1991), that recognizes the difficulty in defining “indigenous peoples.” It provides a detailed and broad statement regarding those who the directive protects and considers situations where it is not clear whether a specific community is included.[5]

2.2. A Brief History

Several centuries ago, the European nations settled in areas known today as North and South America, and eventually other areas would be inhabited including Australia and South Africa.[6] The native residents would be subject to slaughter, enslavement, and disease, and those who survived would endure a long history of discrimination at the hands of their new rulers.[7] Many nations, including the United States, would grant rights through case law and statutes to protect indigenous peoples living within their borders as well as their culture. Gradually it became apparent that this was an issue that needed to be dealt with at the international level. The international community has progressed in the recognition of indigenous human rights, as well as the protection of their right to maintain a separate culture, community, and tradition from the majority citizens.

In 1957, the International Labor Organization (ILO) Convention No. 107 viewed the plight of indigenous peoples within the concept of protecting individual rights, and not as a community.[8] This treaty was ratified by and remains in force for 18 countries. In 1989, a new treaty, The Indigenous and Tribal Peoples Convention, 1989 (No. 169), provided greater protections for indigenous peoples than the earlier convention by considering issues such as education, health, land rights, and employment.[9] Convention No. 169 is designed specifically to defend indigenous peoples by improving their living conditions, while preserving the identity and culture of the group as a whole.[10] The United Nations Declaration on the Rights of Indigenous Peoples was passed by the United Nations Human Rights Council on June 29, 2006 and was adopted by the United Nations General Assembly, stipulating extensive safeguards for indigenous peoples (especially in comparison with any other treaty previously) and further emphasizing the importance of protecting their identity as a group.[11]

2.3. Indigenous Populations

The following is a list of indigenous groups that a researcher will likely encounter, but it is important to keep in mind that there are numerous groups throughout the world, many which are not defined or even recognized by their state of residence. This list is by no means exhaustive.

Aboriginal and Strait Islander Australia
Aleut Arctic
Amazigh (Berbers) Africa
Indians America
Inuit Arctic
Hill tribes or highlanders (Khmer Loeu) Asia (Cambodia)
Maori New Zealand
Sami (Lapp) Europe
San Africa

2.4. Key Terms and Issues

The following are different terms and issues that one is likely to encounter when researching indigenous peoples in international law.

3. Organizations

3.1. United Nations

3.2. Regional and National Organizations

4. Core Documents

Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, Convention No. 107 (1957):[12] This treaty was designed to protect the civil rights of indigenous peoples, but only within the context of individual rights, not as a right to coexist as a separate society within the nation.[13]

Convention Concerning Indigenous and Tribal Peoples in Independent Countries, Convention No. 169 (1989):[14] This treaty is an update to Convention 107 and provides more protections for indigenous populations by seeking to improve their living conditions through education, employment, land rights, etc. while preserving their identity and culture as a separate group.[15] Only 22 nations have ratified this document to date.

United Nations Declaration on the Rights of Indigenous Peoples (2007):[16] This declaration was adopted by the United Nations Human Rights Council on June 29, 2006 and was passed by the United Nations General Assembly on September 13, 2007 with a vote of 144 members in favor. Four nations, including the United States, voted against the declaration, and eleven members abstained.[17] The same countries have reversed course and are behind the declaration (U.N. Dept. of Economic & Social Affairs, United Nations Declaration on the Rights of Indigenous Peoples). The provisions set standards that defend indigenous peoples as a group separate from the larger nation by allowing them to keep their cultures and traditions. The passage of this document is a major milestone for the rights of indigenous peoples internationally because of the broad protection.

AGENDA 21: Chapter 26:[18] AGENDA 21 was passed at the United Nations Conference on Environment and Development in 1992 and stipulates that states take measures to give indigenous peoples more power to independently manage their land and resources in the pursuit of sustainable development.

CERD General Recommendation (XXIII) Concerning Indigenous Peoples:[19] This document implores nations to protect and promote the culture of indigenous groups living within their borders and respect their identity and language. States are urged to offer an environment that allows indigenous populations to be able to preserve their land and resources fitting with their culture.[20] This declaration also demands that governments take measures to protect indigenous peoples from discrimination and guarantee that all decisions affecting them are made only with their approval.[21]

Convention on Biological Diversity, Article 8 (In-situ Conservation):[22] Signing nations have agreed, subject to their own laws, that they recognize and protect the traditions of indigenous peoples with respect to the “conservation and sustainable use of biological diversity.”[23]

Convention on the Rights of the Child:[24] This convention protects the rights of a child belonging to an indigenous group by asserting that no action should be taken that will prevent the child from enjoying “his or her culture, to profess and practice his or her own religion, or to use his or her own language.”[25] This document stipulates that the education the child receives accommodate his or her right to identify with the indigenous group.[26]

Declaration of Principles on the Rights of Indigenous Peoples:[27] Gives indigenous peoples the right to “self-determination”, limits the right of the larger state to intrude into their territories or government, and states that their laws must be recognized.[28] This document also endorses the right of self-defense and protection of lands against the larger state, as well as control over education.[29]

Declaration of San Jose:[30] This document condemns ethnocide, which seeks to deny groups the right to self-identity, equating this denial with genocide.[31] Latin American nations are urged to recognize the right of indigenous peoples living within their borders to maintain their cultural identities, grant them autonomy over their territories, and respect them as a governing institution.[32]

International Covenant on Civil and Political Rights:[33] This document discusses self-determination and recognizes the rights of indigenous peoples as a group with respect to their culture, religion, and language.[34]

International Covenant on Economic, Social, and Cultural Rights:[35] This covenant asserts the right of self-determination and affords “rights to health, education, and an adequate standard of living.”[36]

American Declaration on the Rights of Indigenous Peoples:[37] Organization of American States (OAS) drafted this declaration, which asserts indigenous peoples’ right to independently govern their populations and demands recognition of their laws as a part of the larger nation’s legal system. In addition, it specifies economic and land rights as well as protection from abuse and discrimination.

Resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples:[38] In 1994, the European parliament issued a resolution that incorporates parts of Convention 169. This resolution basically recognizes indigenous peoples’ right to autonomous control over their territory and culture.

World Bank Operational Directive 4.10: Indigenous Peoples:[39] This is a 2013 revision of the 2005 World Bank Operational Directive 4.10, which seeks to promote economic development through projects while preserving the culture and territories of indigenous peoples. The directive requires the involvement of indigenous peoples in making decisions on projects that will impact them. The revised document has a broader definition of “Indigenous Peoples” in section 4 than the 1991 version.

5. Secondary Sources

5.1. Selected Books

Use Worldcat to locate new books on this and other topics or through the Worldcat subscription database available at most academic research libraries.

5.2. Periodical Indexes

5.3. Selected Articles

See “Periodical Indexes” for sources that can be used to locate journal articles on indigenous peoples’ international law and other topics.

6. Online Sources

7. Other Sources

8. Bibliography


[1] Special thanks to the following for their suggested comments and revisions: Sherri Thomas, Law Librarian and Professor of Law Librarianship at the University of New Mexico Law Library; Thanks to Amanda Watson, Director and Assistant Professor of Law at the University of Houston Law Center, O’Quinn Law Library and Emily Lawson, Associate Director at the University of Houston Law Center, O’Quinn Law Library for their support.

[2] Anaya, S. James. Indigenous Peoples in International Law, p. 3. New York: Oxford University Press, 2004.

[3] Id.

[4] International Labor Organization (ILO), General Conference, 76th Session, Geneva, art. 1 (June 27, 1989), (entered into force September 5, 1991):

1. This Convention applies to:

(a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

(b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.

3. The use of the term "peoples" in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.

[5] World Bank Operational Directive 4.10: Indigenous Peoples, paras. 4, 8 (July 2013):

4. For purposes of this policy, the term “Indigenous Peoples” is used in a generic sense to refer to a distinct, vulnerable, social, and cultural group possessing the following characteristics in varying degrees:

(a) self-identification as members of a distinct indigenous cultural group and recognition of this identity by others;

(b) collective attachment to geographically distinct habitats or ancestral territories in the project area and to the natural resources in these habitats and territories;

(c) customary cultural, economic, social, or political institutions that are separate from those of the dominant society and culture; and

(d) an indigenous language, often different from the official language of the country or region.

A group that has lost "collective attachment to geographically distinct habitats or ancestral territories in the project area"; (paragraph 4 (b)) because of forced severance remains eligible for coverage under this policy. Ascertaining whether a particular group is considered as “Indigenous Peoples” for the purpose of this policy may require a technical judgment (see paragraph 8).

8. Early in project preparation, the Bank undertakes a screening to determine whether Indigenous Peoples (see paragraph 4) are present in, or have collective attachment to, the project area. In conducting this screening, the Bank seeks the technical judgment of qualified social scientists with expertise on the social and cultural groups in the project area. The Bank also consults the Indigenous Peoples concerned and the borrower. The Bank may follow the borrower’s framework for identification of Indigenous Peoples during project screening, when that framework is consistent with this policy.

[6] Anaya, S. James. Indigenous Peoples in International Law, pp. 3-6. New York: Oxford University Press, 2004.

[7] Id.

[8] Id. at 55.

[9] International Labor Organization (ILO), General Conference, 76th Session, Geneva (June 27, 1989), (entered into force September 5, 1991).

[10] Id.

[11] United Nations Permanent Forum on Indigenous Issues, United Nations Declaration on the Rights of Indigenous Peoples. See also the UN Declaration on the Rights of Indigenous Peoples Overview Page.

[12] International Labor Organization (ILO), Geneva (June 26, 1957), 328 U.N.T.S. 247, (entered into force June 2, 1959).

[13] Anaya, S. James. Indigenous Peoples in International Law, p.55. New York: Oxford University Press, 2004.

[14] International Labor Organization (ILO), General Conference, 76th Session, Geneva (June 27, 1989), (entered into force September 5, 1991).

[15] Id.

[16] United Nations General Assembly, Res. 61/295 (September 13, 2007).

[17] United Nations Permanent Forum on Indigenous Issues, United Nations Declaration on the Rights of Indigenous People. United Nations Declaration on the Rights of Indigenous Peoples, United Nations Department of Social and Economic Affairs, Indigenous Peoples.

[18] United Nations Conference on Environment and Development, Rio de Janeiro, (June 13, 1992), U.N. Doc. A/CONF.151/26 (vol. 3), at 16, Annex 2 (1992).

[19] United Nations Committee on the Elimination of Racial Discrimination, 1235th meeting (August 18, 1997), U.N. Doc. CERD/C/51/misc. 13/Rev. 4 (1997), reprinted in Anaya, S. James. Indigenous Peoples in International Law, pp. 341-342. New York: Oxford University Press, 2004.

[20] Id.

[21] Id.

[22] Convention on Biological Diversity, art. 8(j), UNCED, Rio de Janiero, (June 5, 1992), 1760 UNTS 79, 31 ILM 818 (1992) (entered into force December 29, 1993).

[23] Id.

[24] United Nations General Assembly, Res. 44/25, (November 20, 1989), 1577 U.N.T.S. 3, 28 I.L.M. 1456 (entered into force September 2, 1990).

[25] Id. at art. 30.

[26] See generally id.

[27] Adopted by representatives of indigenous peoples and organizations meeting in Geneva (July 1985), in preparation for the fourth session of the U.N. Working Group on Indigenous Populations, and by representatives of indigenous peoples and organizations meeting, Geneva (July 1987) in preparation for the group’s fifth session, UN Doc. E/CN.4/Sub.2/1987/22.Annex 5 (1987), reprinted in Westra, Laura. Environmental Justice & the Rights Of Indigenous Peoples: International and Domestic Legal Perspectives, pp. 291-293. London; Sterling, VA: Earthscan, 2008.

[28] Id.

[29] Id.

[30] UNESCO Meeting of Experts on Ethno-Development and Ethnocide in Latin America, San Jose, Costa Rica (Dec. 11, 1981), UNESCO Doc. FS.82/WF.32 (1982), reprinted in Westra, Laura. Environmental Justice & the Rights Of Indigenous Peoples: International and Domestic Legal Perspectives, pp. 293-294 London; Sterling, VA: Earthscan, 2008.

[31] Id.

[32] Id.

[33] United Nations General Assembly, Res. 2200A (XXI) (December 16, 1966), 999 U.N.T.S. 171, (entered into force, March 23, 1976).

[34] Id.

[35] United Nations General Assembly, Res. 2200A (XXI) (December 16, 1966), 993 U.N.T.S. 3, (entered into force, January 3, 1976).

[36] Id. Anaya, S. James. Indigenous Peoples in International Law, p. 149. New York: Oxford University Press, 2004.

[37] Organization of American States. General Assembly, 46th Regular Session (adopted at the Third Plenary Session, June 15, 2016) (46th: 2016: Santo Domingo, Dominican Republic.), OAS Doc. AG/RES.2888 (XLVI-O/16) (2016), https://www.oas.org/en/sare/documents/DecAmIND.pdf.

[38] European Parliament, Strasbourg (February 9, 1994), Eur. Parl. Doc. PV 58(II) (1994), reprinted in Anaya, S. James. Indigenous Peoples in International Law, pp. 328-330. New York: Oxford University Press, 2004.

[39] Operational Manual, OP 4.10 Indigenous Peoples (July 2005).