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Reexamining the Conceptualization of Indigenous Rights in International Law

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Reexamining the Conceptualization of Indigenous Rights in International Law People's Rights or Victim's Rights: Reexamining the Conceptualization of Indigenous Rights in International Law FEISAL HUSSAIN NAQVI* INTRODUCTION ......................................................... 674 I. AN INTRODUCTION TO THE KALASH ................................... 676 A4. The Kalash in History .......................................... 676 B. The Kalash Today .............................................. 686 1. Kalash Society and Its Environment ............................ 687 2. The Structure of Kalash Representation ......................... 695 C. Conclusion ................................................... 696 II. INTERNATIONAL LAW AND THE RIGHTS OF THE KALASH ................... 698 A. The Rights of Minorities and Indigenous Peoples (1500-1947) ........ 698 1. The Law of Nations and the Rights of Indigenous Peoples ......... 698 2. International Law and the Rights of Minorities ................... 700 3. Conclusion ................................................. 701 B. The Rights ofMinorities and Indigenous Peoples (1947-1994) ........ 701 1. The Human Rights Revolution ................................ 701 2. Developments in Minority Rights Since 1947 .................... 704 3. The Rights of Indigenous Peoples in the Postwar International Human Rights Regime ........................... 705 III. DEVELOPMENT OF THE INDIGENOUS RIGHTS NORM ...................... 707 A. Introduction ................................................... 707 B. Legal Arguments Supporting the Emergence of an Indigenous Rights Norm .................................................. 708 C. Nonlegal Arguments Supporting an Indigenous Rights Norm ......... 709 1. The Restorative Paradigm .................................... 709 2. The Comparative Rationale ................................... 710 D. MultilateralInstruments and Indigenous Rights .................... 710 IV. PROBLEMS WITH THE INDIGENOUS RIGHTS NORM ........................ 712 A. Problems with the Legal Arguments .............................. 713 1. Third-Generation Human Rights and Their Application ........... 713 2. Article 27 and the Norm of Cultural Integrity .................... 714 B. Problems with the Nonlegal Arguments ........................... 720 1. The Restorative Paradigm .................................... 720 2. The Comparative Paradigm ................................... 722 3. Other Problems Inherent in the Indigenous Rights Norm .......... 722 V. A NEW APPROACH ................................................. 724 CONCLUSION ........................................................... 727 * Associate, Fried, Frank, Harris, Shriver & Jacobson, New York; J.D., 1994, Yale Law School. This Article is dedicated to my wife Ayeda, without whose love and support it would never have been completed. INDIANA LAW JOURNAL [Vol. 71:673 INTRODUCTION The Kalash Kafirs, an ethnic group of 2500 people, live in three remote mountainous valleys in Pakistan. The last remnants of the fabled Kafirs of the Hindukush, who as recently as 1896 numbered more than 100,000, the Kalash are an island of paganism in a sea of hostile Muslims. Their culture, little changed over the past 3000 years, will probably not survive beyond the next few generations, besieged as it is by modernity as much as by missionaries. If left to fend for themselves, the Kalash as a distinct group will soon disappear. It seems difficult to imagine that they could preserve their identity and culture given the increasingly determined attempts to convert them. Their survival will probably depend on whether the government of Pakistan decides it can forgo the revenues generated by their status as tourist displays. Whatever the motive, preservation of the Kalash as a distinct people will require a series of affirmative measures. Moreover, given the dire economic straits within which Pakistani governments function, their protection will require treating them preferentially. Today, concern for indigenous people is as much a part of Western political orthodoxy as is concern for the environment. Recently, this concern has manifested itself primarily through what some term the emerging international law norm regarding the rights of indigenous peoples. This norm, at the very minimum, safeguards the right of communities to exist as distinct units of human interaction. More functionally, application of this norm requires consideration of the land rights and political self-expression of indigenous peoples. Indeed, the steps that need to be taken with respect to the Kalash are consistent with this emerging norm. However, the thesis of this Article is that, as currently conceptualized, this norm provides no basis for arguing that international law obligates Pakistan to help the Kalash survive as a distinct ethnic and religious group. Advocates of indigenous rights justify the preferential treatment of indigenous groups either as compensation for historical suffering and a disproportionately disadvantaged present condition, or by expanding individual entitlements to include a right to cultural integrity and development. However, the core concern of the indigenous rights norm-in this case, the right of the Kalash to continue existing as a distinct unit of human interaction-is implicated even when these justifications are of no use. Thus, one cannot argue that the Kalash deserve preferential treatment because they are worse off than other ethnic or religious minorities in Pakistan. It is true that the Kalash's quality of life as measured by such objective criteria as literacy rates, income, and access to health care is shockingly low. However, the quality of life of most Pakistanis, as indicated by those same statistics, is just as deplorable. From a comparative perspective, the Kalash are no more deserving of government aid than many other equally impoverished Pakistani citizens. Similarly, one cannot justify preferential treatment because the Kalash are victims of colonial oppression. Unlike the Latin American and North American indigenous peoples, no easy distinction between settler and native, right and wrong, applies here. The Kalash are just one of many equally indigenous groups, and one has only the vagaries of history to blame for the beleaguered survival of this once proud culture. Moreover, Pakistan is essentially unconnected to the events most responsible for the current condition of the Kalash: the massacre and forcible conversion of the Kafirs of the Hindukush in 1896. An Afghan king perpetrated those acts with the active connivance of the British Empire. 19961 INDIGENOUS RIGHTS Though Pakistan may have succeeded to the obligations of the British legally, asking it to atone for the sins of its colonial masters is hardly justifiable. To the extent that scholars have tried to develop legal foundations for an indigenous rights norm which would protect the right of indigenous communities to continue their distinct existence, those foundations are somewhat dubious. Though some indigenous rights theorists base their arguments on an expansive reading of instruments such as the International Covenant for Civil and Political Rights ("ICCPR"), the explicit text of the ICCPR itself, the travaux preparatoires,or even subsequent interpretation and state practice regarding the ICCPR, does not support them. Similarly, the expansion of individual entitlements to include such "Third Generation" rights as the right to development and the right to cultural integrity suffers in that the international community does not generally recognize such rights as binding legal obligations requiring affirmative action. More importantly, because "Third Generation" rights are individual and not collective rights, they are inherently incapable of providing a basis for distinguishing between the cultural integrity or developmental rights of members of one community and members of another. Rhetorically, one may ask: Do the cultural integrity rights of the Kalash somehow require greater attention than the cultural integrity rights of other individuals? One is forced to conclude that the indigenous rights norm provides no basis for arguing that the Kalash deserve government support to preserve their status as a distinct community. Two possible avenues result: The first would admit no distinct norm of indigenous rights. In this case, "indigenous rights" merely refers to the application of universal human rights to particular groups. Indigenous peoples deserve aid not because they are a distinct community, but because they are disproportionately poor: the fact that they are "indigenous" is irrelevant except to the extent that it affects the way in which the remedy for their poverty is to be framed. Similarly, indigenous peoples deserve aid not because they are distinct, but because they are victims who deserve compensation from the successors of their victimizers: the fact that they are "indigenous" is irrelevant except that the label identifies a particular set of events as the acts of victimization. The second avenue would reconceptualize indigenous rights on a truly universal basis. Indigenous rights must be conceived so that the continued existence of a community as a "distinct unit of human interaction" is protected as a worthwhile end in itself. In other words, communities have a right to continued and distinct survival which is as precious to them as the right to continued existence is to any individual. This right of communal survival will be found in international law by expanding the right of all peoples to self- determination. That
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