Denial of justice: the latest indigenous land disputes before the European Court of Human Rights and the need for an expansive interpretation of Protocol 1.

Author:Gismondi, Giovanna
Position:Introduction through III. The Latest European Court of Human Rights' Rulings on Indigenous Land Rights A. Hingitaq 53 and Others v. Denmark (2006
 
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In its three latest decisions on indigenous land rights, the European Court of Human Rights (ECtHR) has afforded scant protection to indigenous peoples. Through an analysis of each case in terms of substantive and procedural law, this Article evaluates the challenges indigenous peoples face when pursuing their claims before the Court. 1 argue that the European Court's narrow interpretation of the "right to peaceful enjoyment of possessions" codified in Protocol 1 (Article 1) of the European Convention on Human Rights (ECHR) has failed to consider the importance of collective lands in securing the cultural survival of indigenous peoples, their economic well being, and their social and spiritual integrity. In contrast, other regional human rights systems have adopted a more progressive stance that conforms with prevalent international norms and standards. I propose that the Court adopt the evolving interpretation of Protocol 1 and consider non-European international legal instruments and the decisions of other human rights bodies in its jurisprudence. At a broader level, incorporating these standards and decisions into ECtHR decisions will contribute to the coherence and unity of international law on the rights of indigenous peoples.

INTRODUCTION I. INTERNATIONAL LAW AND THE PROTECTION OF INDIGENOUS LAND RIGHTS A. Global Instruments for the Protection of Indigenous Peoples 1. The International Labor Organization (ILO) Conventions on Indigenous and Tribal Peoples 2. The U.N. Standards on Indigenous Peoples Rights B. Regional Instruments for the Protection of Indigenous Peoples II. THE EUROPEAN HUMAN RIGHTS SYSTEM AND THE PROTECTION OF INDIGENOUS LAND RIGHTS A. Introduction B. Substantive Law: The European Convention on Human Rights (ECHR) and Protocol 1 to the ECHR C. Rules of Procedure III. THE LATEST EUROPEAN COURT OF HUMAN RIGHTS' RULINGS ON INDIGENOUS LAND RIGHTS A. Hingitaq 53 and Others v. Denmark (2006) 1. The Inughuit Overview 2. Facts of the Case 3. Analysis of the Issue Before the European Court of Human Rights a. Requirements of Admissibility b. Application of Protocol 1 to the Facts of the Case c. Critical Assessment d. Alternative International Mechanism of Protection B. Chagos Islanders v. the United Kingdom (2012) 1. The Chagos Islanders Overview 2. Facts of the Case 3. Analysis of the Issue Before the European Court of Human Rights a. Requirements of Admissibility i. The European Court's Jurisdiction ratione loci and its Application to the Instant Case ii. Critical Assessment iii. Alternative International Mechanisms of Protection iv. Applicants' Victim Status. v. Critical Assessment C. Handolsdalen Sami Village and Others v. Sweden (2009) 1. The Sami Overview 2. Facts of the Case 3. Analysis of the Issue Before the European Court of Human Rights a. Requirements of Admissibility b. Application of Protocol 1 to the Facts of the Case c. Critical Assessment d. Alternative International Mechanism of Protection IV. CONCLUSION APPENDIX A APPENDIX B INTRODUCTION

Europe is home to a number of minority groups, including indigenous peoples. Indigenous peoples, however, differ from other minorities in their special connection with their ancestral land and unique, longstanding traditions. Examples of European indigenous groups include the Sami of Northern Europe and the Nenets of Western Siberia in Russia. In total, Russia is home to more than forty different indigenous groups, mostly spread throughout the polar region. European indigenous groups are also found outside the continent, such as the Inughuit of Greenland and the Chagossians, formerly of the Chagos Islands, both of whom fall under the jurisdictions of European states. As of today, no formal treaty provides a definition of "indigenous peoples." International Labor Convention No. 169, however, identifies cultural distinctiveness, self-identification, and use of a particular territory as central elements in identifying indigenous peoples. (1) In this regard, the connection indigenous peoples maintain with ancestral lands is critical for their physical survival and the basis of their social, cultural, and economic activities. Therefore, international human rights norms and a number of international systems of protection provide legal recognition to indigenous peoples' lands. However, this protection varies from region to region, with some regional systems providing stronger protection than others.

In Europe, the European Convention on Human Rights (ECHR) extends protection to approximately 800 million people, (2) of whom indigenous peoples represent a minute fraction. Yet in 2004 alone, three separate applications were submitted to the European Court by indigenous peoples. These submissions were made by the Inughuit, the Chaggossians, and the Sami, and all three submissions sought to assert the land rights of indigenous peoples. No similar applications have been lodged since then, at least at the time of writing.

While recognizing the contributions of international mechanisms to the protection of indigenous peoples, this Article intends to consider the current level of protection afforded by the European system for the protection of human rights. Unfortunately, the European Court of Human Rights (ECtHR) has maintained a restrictive interpretation of the instruments it oversees when dealing with indigenous peoples' struggles to recover traditional lands, including use of surrounding territories and resources outside their communal lands. In this context, the ECHR, the main human rights treaty supervised by the ECtHR emphasizes individual rights and does not make any reference to indigenous peoples. Additionally, Protocol 1 to the ECHR, which is the only European human rights treaty that protects the right of property, recognizes the power of the state to take away property. The Court has interpreted such power broadly, without balance given to the collective rights of indigenous peoples to their lands. This approach persists even with ongoing international legal developments, including the adoption of the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which recognizes that "[i]ndigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired...." (3) I conclude that the Court has been ineffective in protecting indigenous peoples' right to communal lands as demonstrated by the cases under analysis.

Part I lays down the pertinent norms applicable to indigenous peoples under international law. The goal of this Part is to provide an overview of the development of international law designed to protect indigenous peoples, particularly their right to communal lands. I particularly emphasize the limitations on and obstacles to effective legal protection of indigenous peoples' lands. Part II focuses on the European system for the protection of human rights, including substantive and procedural rules as they pertain to indigenous peoples. Part III discusses the three latest applications lodged before the European Court, including analysis of their outcomes and the challenges indigenous peoples consequently confront in their efforts to move claims forward. This Part begins with the analysis of Hingitaq 53 and Others v. Denmark, a claim lodged in representation of the Inughuit, one of the smallest indigenous tribes in the world. The Inughuit have claimed the right to return to their ancestral lands in northern Greenland after being forcibly relocated as the result of an agreement signed between Denmark and the U.S. during the 1950s. This agreement gave the U.S. access to Greenland to establish an air base in the area claimed by the Inughuit as their ancestral lands. In The Chagos Islanders v. the United Kingdom, a claim was submitted by a group of Chagos Islanders against the UK due to their eviction from the Chagos Islands during the 1960s. The removal was the result of an agreement between the United Kington and the U.S. in which the UK agreed to lease the islands to the U.S. for defense purposes. As in Hingitaq 53, the Chagos Islanders claimed the right to return to their ancestral lands. Finally, in Handolsdalen Sami Village and Others v. Sweden, the Sami people of Sweden argued that grazing rights in private property, fundamental for the survival of reindeers and part of the Sami cultural identity, constituted a "possession" protected by Protocol 1 to the ECHR. These cases provide an invaluable opportunity to analyze the current scope of the right to peaceful enjoyment of possessions, particularly as it applies to indigenous land claims. I also refer to the decisions of other international human rights bodies concerning indigenous land rights for comparison.

  1. INTERNATIONAL LAW AND THE PROTECTION OF INDIGENOUS LAND RIGHTS

    1. Global Instruments for the Protection of Indigenous Peoples

      Global agreements for the protection of indigenous land rights have been negotiated through two Inter-Governmental Organizations (IGOs): the International Labor Organization (ILO) and the United Nations. Both have played an instrumental role in the consolidation of global standards applicable to indigenous peoples' rights to ancestral lands, natural resources, and territories.

      1. The International Labor Organization (ILO) Conventions on Indigenous and Tribal Peoples

        The development of international law to protect human rights reaches both minorities and indigenous peoples. These two groups share common ground and, indeed, most indigenous peoples are minorities. However, international standards applicable to indigenous peoples are more developed and specialized than those applicable to minorities. Yet, only a few treaties for the special protection of indigenous peoples are in force today.

        The international legal development for the protection of indigenous peoples began within the framework of the International Labor Organization, not the UN. The ILO was founded in...

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