Reparations for Indigenous Peoples: International and Comparative Perspectives (review)

What indigenous peoples have suffered in the past and what some of them continue to suffer today is becoming widely recognized as serious violations of human rights. After more than 30 years of advocacy by indigenous peoples, the United Nations General Assembly finally passed the Declaration on the Rights of Indigenous Peoples in September 2007.¹ The adoption of the Declaration can be seen as signaling the commitment of the international community to remedy historical ills and combat the present denial of rights. The volume edited by Federico Lenzerini appreciates this landmark agreement as a historical moment, but the various contributors also seek to move beyond the Declaration by addressing the fundamental question of what constitutes justice for the struggle of indigenous peoples.

Reparations for Indigenous Peoples considers the right to reparations by indigenous peoples for breaches of their individual and collective rights. The question of reparations in international law is evolving and continues to be relevant in a number of contexts. One such context involves the current legal action pursued in the United States to compensate victims of Apartheid in South Africa. Even where the need for compensation and reparation is recognized, the feasibility, forms, and effectiveness of these measures will vary. Understanding reparations for human rights violations, therefore, requires an international perspective and benefits from comparative study. The book accomplishes these tasks by maintaining a practical approach to analyzing effective redress while at the same time being comprehensive in its vision.

The book is divided into three parts. The first provides an assessment of the relevant international legal framework. This section includes the status of indigenous peoples in international law and the legal basis of reparations for human rights violations. The second part, comprising the major part of the volume, is rich with detail on the global, regional, and domestic practice of reparations for indigenous peoples. The third part seeks to identify in the comparative perspective the means for operational strategies and “best practice” to ensure reparations for injustice.

I

After a concise introduction by the editor Federico Lenzerini on the scope and aims, the book begins by asking whether international law is ready to ensure redress for historical injustices. Francesco Francioni approaches the question by providing the legal basis for a right of reparation in international humanitarian and human rights law for indigenous peoples. This legal basis is evolving. Traditionally, the term “reparations” has been used in the area of interstate relations, particularly when addressing state responsibility. Some argue that indigenous peoples can be considered as the original sovereign entities over their ancestral lands. However, this argument is not consistently maintained here, except to point out that legal principles, such as that of terra nullius are in many jurisdictions no longer considered lawful. Instead, the wrongful nature of the acts against indigenous peoples as collective entities derives from breaches of international human rights law. The use of the term reparation in the book is therefore consistent with this contemporary use in the context of the United Nations and international law. Francioni’s conclusion is that in the recent developments in international law there are “positive signs of a progressive development . . . toward the recognition of a customary right to reparation.”²

The legal background is that the right to effective remedy is a part of international law and is expressed in global, regional human rights treaties and other instruments. Article 8 of the United Nations Declaration on Human Rights (UDHR), for instance, states “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”³ The International Covenant on Civil and Political Rights (ICCPR) has been frequently used in claims by indigenous peoples based on Article 27.⁴ Article 27 requires states to protect individuals belonging to ethnic, religious, or linguistic minorities and for states to allow these communities the right to enjoy their own culture, their own religion, and their own language.⁵ Article 2...