Integrated Human Rights in Practice
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Integrated Human Rights in Practice

Rewriting Human Rights Decisions

Edited by Eva Brems and Ellen Desmet

This book aims to introduce concrete and innovative proposals for a holistic approach to supranational human rights justice through a hands-on legal exercise: the rewriting of decisions of supranational human rights monitoring bodies. The contributing scholars have thus redrafted crucial passages of landmark human rights judgments and decisions, ‘as if human rights law were really one’, borrowing or taking inspiration from developments and interpretations throughout the whole multi-layered human rights protection system. In addition to the rewriting exercise, the contributors have outlined the methodology and/or theoretical framework that guided their approaches and explain how human rights monitoring bodies may adopt an integrated approach to human rights law.
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Chapter 14: Taking seriously indigenous peoples’ right of selfdetermination and the principle of ‘free, prior and informed consent’: Human Rights Committee, 2102/2011, Paadar et al. v Finland

Rewriting Human Rights Decisions

Martin Scheinin

Abstract

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.

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