Indigenous Peoples Under International Law: an Asian Perspective

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Indigenous Peoples Under International Law: an Asian Perspective Western University Scholarship@Western Electronic Thesis and Dissertation Repository 10-30-2012 12:00 AM Indigenous Peoples under International Law: An Asian Perspective Tashi Phuntsok The University of Western Ontario Supervisor Sara Seck The University of Western Ontario Graduate Program in Law A thesis submitted in partial fulfillment of the equirr ements for the degree in Master of Laws © Tashi Phuntsok 2012 Follow this and additional works at: https://ir.lib.uwo.ca/etd Part of the International Law Commons Recommended Citation Phuntsok, Tashi, "Indigenous Peoples under International Law: An Asian Perspective" (2012). Electronic Thesis and Dissertation Repository. 943. https://ir.lib.uwo.ca/etd/943 This Dissertation/Thesis is brought to you for free and open access by Scholarship@Western. It has been accepted for inclusion in Electronic Thesis and Dissertation Repository by an authorized administrator of Scholarship@Western. For more information, please contact [email protected]. Indigenous Peoples under International Law: An Asian Perspective (Spine title: Indigenous Peoples under International Law) (Thesis format: Monograph) By Tashi Phuntsok Graduate Program in Law A thesis submitted in partial fulfillment of the requirements for the degree of Master of Laws The School of Graduate and Postdoctoral Studies The University of Western Ontario London, Ontario, Canada © Tashi Phuntsok 2012 THE UNIVERSITY OF WESTERN ONTARIO School of Graduate and Postdoctoral Studies CERTIFICATE OF EXAMINATION Supervisor Examiners ______________________________ ______________________________ Professor Sara Seck Professor Valerie Oosterveld Supervisory Committee ______________________________ Professor Joanna Quinn ______________________________ Professor Michael Coyle ______________________________ ______________________________ ______________________________ The thesis by Tashi Phuntsok entitled: Indigenous Peoples under International Law: An Asian Perspective is accepted in partial fulfillment of the requirements for the degree of Master of Laws ______________________ _______________________________ Date Chair of the Thesis Examination Board ABSTRACT This thesis analyzes Asian understandings of the definition of indigenous peoples in international law. The rights of indigenous peoples have emerged strongly in the international domain, culminating in 2007 with the United Nations Declaration on the Rights of Indigenous Peoples. Yet, the question of definition and identity of indigenous peoples remains uncertain and indeterminate, at least from an Asian perspective. Traditionally indigenous peoples are understood to be those who were victims of European colonial settlements. It is the aim of this research to find out whether indigenous peoples exist in Asia by analyzing the approaches taken by select Asian states and non-state groups within these states who claim to be indigenous peoples. The thesis also examines whether there are any specific rights belonging to indigenous peoples which have attained the status of customary international law. KEYWORDS Indigenous peoples, minorities, self-determination, self-identification, international law, customary international law, tribal people. iii ACKNOWLEDGEMENT I would like to express my sincere gratitude to my supervisor Prof. Sara Seck from the University of Western Ontario for giving me an opportunity to pursue Master of Laws (LL.M) program under her supervision. I am deeply thankful for her continuous support, invaluable insight, patience, motivation and most importantly for believing in me. I also wish to express my warm and sincere gratitude to the second reader of my thesis, Prof. Michael Coyle from the University of Western Ontario for taking the time to provide helpful and insightful comments, which greatly helped improve my thesis. Lastly, I would like to thank the Graduate Program, Faculty of Law, University of Western Ontario for giving me a chance and funding for the program, without which my thesis would not be possible. iv DEDICATION This thesis is dedicated to the undying spirit (optimism and resistance) of all oppressed peoples around the world and their quest for justice and identity. v TABLE OF CONTENTS ABSTRACT ....................................................................................................................... iii KEYWORDS ..................................................................................................................... iii ACKNOWLEDGEMENT ................................................................................................. iv DEDICATION .................................................................................................................... v TABLE OF CONTENTS ................................................................................................... vi Chapter 1: Methods and Literature Review ........................................................................ 1 1.1. Introduction .............................................................................................................. 1 1.2. Objectives and Scope ............................................................................................... 1 1.3. Sources of International Law ................................................................................... 3 1.4. Theory of Indigenous Peoples as Participants in International Law ........................ 8 1.5. Understanding the Problem of Definition in International Law ............................ 10 1.6. Methodology .......................................................................................................... 18 1.7. Literature Review................................................................................................... 21 1.7.1. Primary Legal Sources .................................................................................... 21 1.7.2. Secondary Legal Sources ................................................................................ 23 1.8. Conclusion ............................................................................................................. 27 Chapter 2: Historical Evolution of the Concept of Indigenous Peoples in International Law ................................................................................................................................... 28 2.1. Natural law and Indigenous Peoples ...................................................................... 29 2.2. Emergence of Modern State System ...................................................................... 33 2.3. Positivist International Law and Indigenous Peoples ............................................ 35 2.4. Deskaheh at the League of Nations, 1922-1924 .................................................... 38 2.5. Indigenous Peoples and the United Nations .......................................................... 42 2.6. Conclusion ............................................................................................................. 46 Chapter 3: Indigenous Peoples and the United Nations Processes ................................... 48 3.1. Emergence of Indigenous Peoples as International Lawmakers............................ 49 3.2. UN Working Group on Indigenous Populations .................................................... 54 3.3. Permanent Forum on Indigenous Issues ................................................................ 58 3.4. The Expert Mechanism on the Rights of Indigenous Peoples ............................... 60 3.5. UN Special Rapporteur on the Rights of Indigenous Peoples ............................... 61 3.6. World Bank Policies .............................................................................................. 63 vi 3.7. International Labour Organization and Indigenous Peoples .................................. 68 3.8. Conclusion ............................................................................................................. 74 Chapter 4: Asian State Views on the Definition and Identification of Indigenous Peoples ........................................................................................................................................... 75 4.1. Problems and Approaches to the Definition and Identification ............................. 75 4.2. The Asian Situation................................................................................................ 83 4.3. India’s view ............................................................................................................ 85 4.4. China’s view .......................................................................................................... 89 4.5. Philippines’ View................................................................................................... 92 4.6. Bangladesh’s View ................................................................................................ 95 4.7. Conclusion ............................................................................................................. 98 Chapter 5: Asian Group Views on the Definition and Identification of Indigenous Peoples ........................................................................................................................................... 99 5.1. Asian Context......................................................................................................... 99 5.2. Groups in India .................................................................................................... 104 5.3. Groups
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