Indigenous Peoples and Human Rights: International and Regional Jurisprudence by Ben Saul (review)

INDIGENOUS PEOPLES AND HUMAN RIGHTS: International and Regional Jurisprudence by Ben Saul examines how Indigenous peoples are both empowered and constrained by international human rights laws in efforts to assert and defend claims to political, cultural, civil, social, and economic rights. Drawing on cases from jurisprudence of United Nations treaty committees as well as regional human rights bodies that use standards of human rights to address assertions of Indigenous peoples, the author builds a case for his argument that Indigenous peoples use human rights law to assert Indigenous rights. While the author covers many issues of interest to Indigenous peoples addressed through this jurisprudence, Saul focuses on issues surrounding ancestral lands, natural resources, language, and culture.

Saul develops his argument through case studies of international and regional jurisprudence in Africa, the Americas, and Europe. Chapter 1 takes up the question of defining and identifying Indigenous peoples in international law, illustrating the complexity of generating and enforcing international law for such a contested category. Saul focuses on the tensions between defining Indigenous peoples as "peoples" versus "minorities" and how language produces slippage for interpretation of the rights of Indigenous peoples. Chapters 2 and 3 focus on UN treaty committee jurisprudence. These chapters demonstrate that, without Indigenous-specific laws, Indigenous peoples around the world have used general human rights standards to apply to their specific circumstances. Chapters 4 and 5 focus on regional jurisprudence in the Inter-American and African human rights systems. Chapter 4 demonstrates how these regional human rights systems have developed jurisprudence to protect Indigenous claims to land and resources, while chapter 5 also focuses on how these systems address cultural rights, socioeconomic rights, and protection from violence and excessive law enforcement. Saul concludes by arguing that while international law sets norms and standards for Indigenous rights, Indigenous peoples must appeal to regional and national systems to fight for human and Indigenous rights.

Through examples of the appeals of Indigenous peoples to both international and regional human rights systems in multiple sites around the world, Saul builds a compelling case for his argument that Indigenous peoples use existing human rights systems to make claims to their rights as Indigenous peoples. The case studies of Lovelace v. Canada (1981) and Kitok v. Sweden (1988) demonstrate how the UN Human Rights Committee (HRC) defended Indigenous rights through law that was not Indigenous-specific. In Lovelace v. Canada, an Indigenous woman lost the rights to live on her reserve after she married a non-Indigenous person. Canada argued that the laws that caused the woman to lose those rights were in place to preserve the identity of the tribe and their collective right to their culture. In this case, the HRC found that the individual's rights to live on the reserve did not threaten the tribe's collective right to culture and identity and ruled in favor of Lovelace. In this case, the Indigenous plaintiff appealed to international human rights law under the clause that people have a right to take part in cultural life. While this provision of international human rights law was not written specifically with Indigenous peoples in mind, the provisions of the law could be applied to an Indigenous case to defend Indigenous rights.

Throughout the book, Saul references the complexity of defining Indigeneity in states that deny the presence of Indigenous peoples within their borders. Saul mentions the Asian nations of China, India, Indonesia, Thailand, Myanmar, and Bangladesh as states that refuse to use language such as "Indigenous" to refer to populations within their borders. However, Indigenous peoples in Asia receive only a passing mention in this book, and none of Saul's examples to support his arguments include cases from Asia. By overlooking this region, Saul missed an opportunity to further develop his argument. Including examples of human rights appeals from Indigenous peoples in Asia, particularly those unrecognized by the nation-states that govern them, could further support his argument that human rights law offers a means by which Indigenous...