ABSTRACT
This chapter deals with several legal problems related to the recognition and protection of indigenous rights in contemporary democratic states. The presence of different groups with different identities within the contemporary state is a central element of this debate. In the democratic state, based on the rule of law, democratic institutions, separation of powers and protection of fundamental rights, the recognition of different rights defined at international level and incorporated often in constitutional law represents an important chance for groups within the state to obtain certain specific rights. The recently adopted United Nations Declaration on Indigenous Peoples1 (UNDIP) provides an interesting basis for the analysis of the legal significance of the rights of indigenous peoples in contemporary democratic states. Furthermore, this issue leads to the not easy recognition of indigenous peoples in modern constitutional states, with special attention to their rights of social and political organisation, including the use of legal traditions, use of lands and forms of traditional government. Such a complex system of rights has been sometimes related to the idea of a right to cultural identity2 which would represent a set of rights for certain identified groups within the state. The Universal Declaration of Human Rights (UDHR) and the role of international human rights will be considered to clarify the critical points of the rights of indigenous peoples. The chapter is based on international and comparative legal perspectives that can provide an outline of the difficult issues concerning the recognition and application of indigenous rights within and by states. As is well known, international law usually provides a general and abstract set
of rules, the fruit of lengthy and complex negotiations and compromises. In addition, it would be a serious lack of pragmatism to forget that individuals and communities, both domestic and foreign, are today under the jurisdiction of states. Therefore, the responsible entities for ensuring their protection are the state’s authorities at their different levels, from national to local government. This protection is given through national legal norms, the system of courts and other mechanisms for the protection of human rights, such as ombudsmen and national human rights commissions.
