c.
Other instruments
23.
In addition, another international legal instrument, but this time of a regional
nature, the 1986 African Charter on Human and People’s Rights, incorporates this
tendency when it establishes the special protection of certain rights of the indigenous
peoples based on their exercise as collective rights. 27
III. THE SCOPE OF THE HUMAN RIGHTS OF THE INDIGENOUS PEOPLES AND
THEIR MEMBERS.
A. Specific rights
24.
It could then be argued that the said international texts, autonomous sources of
international law, such as the treaties, and auxiliary sources, such as the decisions of
organs of international organizations, refer to the human rights of the indigenous
peoples and even of their members when it is a matter of the specific rights of either
these collectivities or their members, which are, consequently, distinct or different
from those in force for all human beings. Otherwise, the special or distinctive
declaration in some of the legal instruments mentioned (those which seek precisely to
have legal effect, in other words, to establish or to determine the international legal
obligations derived from the rights thus declared), would be meaningless and lack
justification.
A.
Rights of the collectivity
25.
All the foregoing allows for a broader understanding of the provisions of Article
1 of the Convention, 28 so that the obligation to respect and ensure to all persons the
exercise of the rights established in the Convention would also include the collectivities
or communities, such as the indigenous peoples, to the extent that at least some of
these rights extend to these entities. Rights that, consequently, the members may only
enjoy and exercise through the collectivity and because they form part of it, which, all
things considered, would imply that such rights are not merely of an individual nature.
CONCLUSION
26.
In other words, based on the above, and applying the provisions of Article 29(b)
and 29(d) of the Convention, 29 it can be concluded that, in keeping with the
progressive development of international human rights law, it would be appropriate, on
the one hand, to include in the term “person” contained in several articles of the
Convention and as victims of violations of rights established in it, not only the
27
African Charter on Human and Peoples Rights: Article 20, which protects the right to existence and
self-determination; Article 21, which protects the right to the natural resources and ownership of their lands,
and Article 22 which guarantees the right to development.
28
29
See note 1.
Article 29:
“No provision of this Convention shall be interpreted as: […]
b. restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of
any State Party or by virtue of another convention to which one of the said states is a party;
[…] and,
d. excluding or limiting the effect that the American Declaration of the Rights and Duties of Man
and other international acts of the same nature may have.”
6