restrictions on land rights should be further considered in
future cases before the Inter-American bodies, particularly as
they involve the relationship between indigenous consultation
and consent, as well as the role of indigenous representatives
in the relevant decision-making process. Cases before the
IACHR and IACtHR should promote synergy and consistency
within the system, taking also into account ILO and HRC
practice, as well as the particularly progressive approach to
land rights adopted by CERD.
Jurisprudence should be further enhanced by
(a) expanding on certain aspects of this regime, including
the implications of the right to free, prior and
informed consent of indigenous peoples, most notably
in the context of cumulative effects that may be
expected to result from development activities;
(b) exploring the link between Articles 6, 7 and 15 of ILO
Convention No. 169 with a view to further clarifying
the scope of consultations with indigenous peoples,
and consequently the objective of reaching an
agreement with them as laid down in Article 6(2);
(c) encouraging the HRC to emphasize the duty on states
to consult with indigenous peoples when carrying out
the demarcation of their traditional lands, as well as to
respect indigenous peoples’ customary laws and
practices regarding land tenure systems when deciding
on indigenous claims to traditional lands;
(d) promoting dialogue between judicial and quasijudicial bodies over relevant aspects of indigenous land
rights and their potential diffusion within the African
and European systems.
Women’s rights
There is a need for jurisprudential elaboration on the impact
of cultural diversity, including minority rights, on the rights of
women. Generally speaking, full awareness of the interplay
between different grounds of discrimination, particularly
gender, race, colour, ethic origin and religion, is crucial to
address the specific situation of indigenous and minority
women. In this sense, CEDAW should be encouraged to
50
embrace a more systematic approach to multiple forms of
discrimination, involving not only rural or vulnerable women
but also minority and indigenous women. The protection of
the cultural integrity of indigenous/minority groups does not
encompass practices that run counter to the protection of their
members, including women. Governments’ obligation to
address harmful and discriminatory practices must not result
in an indiscriminate attack on minority and indigenous
cultures as such, and prohibitions must be based on reasonable
and objective grounds and be proportionate to the aims
pursued. The UN treaty bodies have generally recommended
that states should engage in an intercultural dialogue with all
the parties concerned, notably traditional and religious leaders
and women themselves, with a view to fostering
reconsideration of aspects of the community’s identity. The
participation of women in rethinking customary laws is
central to this process.
Jurisprudence should be further enhanced by
(a) supporting cases where particular practices infringe on
the principle of equality, including family law and
marital rights, and cases where other rights of women
and girls, such as their right to life, health, dignity,
education and physical integrity appear to have been
equally threatened;
(b) encouraging further decisions by the HRC on the
complex interplay of women’s rights and minority
rights in light of Articles 3 and 27 of the ICCPR;
(c) encouraging developments in this area under Article 5
of the Convention on the Elimination of All Forms of
Discrimination against Women. The fact that a large
number of states have ratified the Optional Protocol
to the Convention may create opportunities to
examine the potential of this provision in a quasijudicial setting;
(d) considering the implications of Article 3 of the
ICESCR vis-à-vis Article 15; the recently adopted
Optional Protocol to the ICESCR establishing a
complaints procedure may offer further avenues for
litigation, although it is not possible at this stage to
foresee if and when the protocol will enter into force.
MINORITY GROUPS AND LITIGATION: A REVIEW OF DEVELOPMENTS IN INTERNATIONAL AND REGIONAL JURISPRUDENCE