CEU Electronic Theses and Dissertations, 2017
| Author | Mohanty, Hitabhilash |
|---|---|
| Title | Misfortunes of Indigenous Peoples in 21st Century: A Comparative Study of India & Philippines and their compliance with International |
| Summary | Though the rights of the indigenous peoples are protected under international conventions and declaration but none of them provide a concrete definition of the term ‘indigenous’. One of the reason could be granting the discretion to the states to determine who do not belong to the category of indigenous people. This research work does not claim that there is absence of law in the field of right to land and reparation of indigenous peoples. However, this research work delves deep into the work done in this field in the international forum and in the jurisdictions of India and Philippines to find out the status of the indigenous peoples with respect to their land and their right to reparation. The idea of making having comparative study between India and Philippines in this context was because, the both voted in favour of UNDRIP, share common colonial past and have huge chunk of indigenous peoples. The research at first explains the definition of ‘indigenous peoples’ given by the UNDRIP, providing general criteria as to who shall be considered as indigenous peoples. Further it states the drawbacks of the definition such as the definition lumps all the indigenous communities into one identity, which is historically not accurate as all the indigenous communities are different in their own way. Thereafter, it illustrates the definition of indigenous peoples in the jurisdictions of India and Philippines. At this point, it can be noted that Philippines is the first Asian country to define, recognize and protect the rights of indigenous peoples whereas, India does not recognize the term ‘indigenous.’ It considers Indian natives as adivasis. In the second part of the thesis, the protection afforded by the international forum is illustrated and their effectiveness is discussed. International Labour Organisation (ILO) and United Nations (UN) are the international institutions to recognize and protect the rights to land and reparation of indigenous peoples. Thereafter, it examines the right to land of indigenous peoples in India and Philippines. For this purpose, the thesis critically analyses the relevant domestic legislations to find its competency and effectiveness. In a comparative study, it could be found out that UNDRIP as well as the domestic legislations of Philippines provide for absolute right of indigenous peoples over their land whether owned or traditionally occupied whereas, the Indian laws provide no specific land rights for the indigenous peoples and in general the State can acquire any land within the territory for public purpose by exercising its power under the doctrine of eminent domain. In the last part, this thesis assesses the right to reparation of the displaced indigenous peoples. UNDRIP provides for restitution in the cases where the land of indigenous peoples is occupied but with prior consultation and obtaining the free consent of the inhabitants. A fair and just compensation shall be paid. In Philippines, IPRA, 1997 provides that the state shall take necessary measures to recognize their land and provide them with ‘certificate of ancestral domain.’ It also provides the same as of UNDRIP in regard to reparation for indigenous peoples. But in India, reparation can be only claimed by the title holders of the land not the occupants. The adivasis of India have been residing in their lands from ages but not all the indigenous communities are title holders of the land. This grossly violates the right to reparation of the indigenous peoples and is not in conformity with relevant international law. For the purpose of this research, international legal instruments such as UNDRIP and ILO Convention No. 107 and 169, relevant domestic legislations of India and Philippines are considered. Various scholarly work and judgment of cases delivered by courts of law has been studies and referred to in this thesis. Other secondary sources such as online journals, weekly magazines, background papers, UN factsheets, country reports and reports of special rapporteur has been assessed. |
| Supervisor | Stephen Pogány |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2017/mohanty_hitabhilash.pdf |
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