Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World

Protection of indigenous peoples’ rights is one of the contentious matters in the modern world history. While subjecting indigenous peoples to modern civilization, state governments have forcefully evicted them from their ancestral lands in pursuit for environmental conservation or economic development goals. This has adversely affected indigenous peoples’ right to ancestral lands protected by various international, regional and national instruments. While seeking for justice, national courts have strictly applied judicial restraint approach to award inadequate judicial remedies to the victims. Being aggrieved, indigenous peoples have sought for remedies before international courts and tribunals which issue declarative orders and award compensation to victims. These orders by international bodies cannot be effective unless enforced by local courts. This raises a complementarity of national and international courts in protecting indigenous community’s right to ancestral lands, and revival of judicial activism approach in interpretation of national and international human rights instruments. This paper critically evaluates two competing judicial approaches in interpretation of laws by national and international judicial bodies. It eventually recommends for a human rights approach towards effective protection of indigenous peoples’ right to ancestral lands. The paper applies doctrinal methodology in evaluating different literature, legal instruments and precedents by national and international judicial bodies.