Conceptions of Indigenousness in the Case Law of the European Court of Human Rights
Posted: 27 Dec 2019
Date Written: 2016
Europe is home to a number of indigenous peoples. Living at the geographical margins of Europe and often in areas which have been the object of colonialization, indigenous peoples are often forgotten by decision-makers in far-away capitals. The European Convention on Human Rights was drafted in the aftermath of World War II and reflects Europe's reactions to the horrors of the Shoa and the war. Indigenous peoples were hardly on the drafters' minds. Especially since the 1980s, indigenous peoples have begun to use international human rights litigation to defend their rights vis-à-vis nation states. While Article 27 of the International Covenant on Civil and Political Rights (ICCPR) is the obvious norm of choice for indigenous rights in international human rights treaties outside ILO Convention No. 169, and litigants from the Americas have used the Inter-American human rights system with significant success the highly developed regional human rights mechanism in Europe has provided a particular opportunity for indigenous litigants. The European Convention on Human Rights applies not only in Norway, Sweden, Finland and Russia but also in Greenland and a number of French areas (of different legal status) which are geographically located outside of Europe. Bringing indigenous rights cases before a court which is limited to legal texts which were not written with indigenous peoples in mind is particularly challenging because different indigenous activities will have to fit into the patterns offered by the European Convention on Human Rights. In addition, the European human rights system has used the term "indigenous" in ways which, at times, are at odds with indigenous rights law in the modern sense of the term.
This article highlights how the notion of indigenousness has developed in the case law of the European Court of Human Rights and how indigenous applicants have been able to make use of the European human rights system and which barriers they continue to face.
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