The Human Rights Committee acting under the International Covenant on Civil and Political Rights has been one of the main fora for litigation related to the rights of indigenous peoples. The Committee has developed a four-part test to determine whether an interference in the life of an indigenous group, including in its traditional means of livelihood, constitutes a violation of article 27 of the Covenant, protecting the right of the members of a minority to enjoy their own culture. In the view of the author, however, the Committee has in practice failed to make full use of its own test and has instead often adopted a deferential standard in relation to any explanations received from the respondent state. As a consequence, the Committee’s case law has become inconsistent and unsatisfactory. In his rewriting of the case of Paadar et al. v Finland, decided by the Committee in 2014, the author demonstrates that the Committee’s own test is viable and will need to be integrated with the recognition of indigenous peoples as beneficiaries of the right of all peoples to self-determination and with the notion of ‘free, prior and informed consent’ as embodied in the 2007 United Nations Declaration on the Rights of Indigenous Peoples.
This chapter addresses one of the most important questions for the methodology of human rights law, both as a social practice and as a scholarly discipline, namely how to interpret the provisions of human rights treaties, many of which are seemingly vague or open-ended as texts. The author defends the view that there is a proper methodology for legal interpretation, understood as giving specific and concrete meaning to those texts. Even if different scholars or different lawyers may sometimes end up defending differing interpretations, the interpretive activity of each of them can be assessed for the correctness of its methodology and ultimately also for the correctness of the answer arrived at.