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

Rwebangira Gaspardus

doi:doi:10.11648/j.ijls.20250803.17

Research Article |

| Peer-Reviewed

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

Rwebangira Gaspardus^*

Published in International Journal of Law and Society (Volume 8, Issue 3)

Received: 26 June 2025 Accepted: 11 July 2025 Published: 11 August 2025

Views: Downloads:

Download PDF

Share This Article

Twitter
Linked In
Facebook

Abstract

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.

Published in	International Journal of Law and Society (Volume 8, Issue 3)
DOI	10.11648/j.ijls.20250803.17
Page(s)	207-217
Creative Commons	This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution and reproduction in any medium or format, provided the original work is properly cited.
Copyright	Copyright © The Author(s), 2025. Published by Science Publishing Group

Keywords

Indigenous Peoples, Ancestral Lands, Judicial Restraint, Judicial Activism and Court

References

[1]	Report of the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities E/CNA/Sub. 2/1986/7/AddA, para. 379.
[2]	Advisory Opinion of the African Commission on Human and Peoples' Rights on the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the African Commission on Human and Peoples' Rights at its 41^st Ordinary Session Held in May 2007 in Accra, Ghana, 4.
[3]	Application No. 006/2012(Judgment) of 26 May 2017, para. 107.
[4]	S. Kumar ‘Judicial Activism vs Judicial Restraint: A Comparative Review of Landmark Cases’ (2024) 2 Indian Journal of Law 103-104.
[5]	B. Shemton ‘Following Thayer: The Many Faces of Judicial Restraint’ (2011) 21 Boston University Public Interest Law Journal 64.
[6]	R. Choudhary ‘Judicial Activism vs Judicial Restraint: A Comparative Study Between India and USA’ IV India Journal of Integrated Research in Law, 101-102.
[7]	T. Peter ‘The Role of the judiciary: Interpreting vs Creating law-or how Hans Kelsen justified ‘judicial activism’ (2024) Onati International Institute for the Sociology of Law-Spain, Onati Socio-Legal Series (ISSN 2079-5971) 10.
[8]	C Bolick ‘The Proper Role of Judicial Activism’ (2017) 42 Havard Journal of Law and Public Policy, 4-13.
[9]	J. Manuel ‘Judicial Activism in a Violent Context: The Origin, Role and Impact of the Colombian Constitutional Court’ (2004) 4 Washington University Global Studies Law Review, 668-673.
[10]	B. Shemton ‘Following Thayer: The Many Faces of Judicial Restraint’ (2011) 21 Boston University Public Interest Law Journal 65.
[11]	B. Shemton ‘Following Thayer: The Many Faces of Judicial Restraint’ (2011) 21 Boston University Public Interest Law Journal 67-69.
[12]	G. John ‘The Rise of the Hero Judge’ (2001) 24 UNSW Law Journal 747.
[13]	M Johnny & A Zimmermann ‘Judicial Activism and Constitutional (Mis) interpretation: A Critical Appraisal’ (2021) 40 University of Queensland Law Journal 120.
[14]	A. Tauqir ‘Judicial Activism and human rights practice in Bangladesh: An Overview’ (2024) 10 International Journal of Law 162.
[15]	S. Ujala ‘Judicial Activism and Sustainable Development: The Path to Environmental Justice’ (2024) 11 Journal of Emerging Technologies and Innovative Research 863.
[16]	R. Choudhary ‘Judicial Activism vs Judicial Restraint: A Comparative Study Between India and USA’ IV India Journal of Integrated Research in Law 1103.
[17]	A. Tauqir ‘Judicial Activism and Human Rights Practice in Bangladesh: An Overview’ (2024) 10 International Journal of Law 163.
[18]	S. Kumar ‘Judicial Activism vs Judicial Restraint: A Comparative Review of Landmark Cases’ (2024) 2 Indian Journal of Law 103; also see Tauqir ‘Judicial Activism and human rights practice in Bangladesh: An Overview’ (2024) 10 International Journal of Law 164.
[19]	G. John ‘The Rise of the Hero Judge’ (2001) 24 UNSW Law Journal 748.
[20]	T. Peter ‘The Role of the judiciary: Interpreting vs Creating law-or how Hans Kelsen justified ‘judicial activism’ (2024) Onati International Institute for the Sociology of Law-Spain, Onati Socio-Legal Series (ISSN 2079-5971) 11-12.
[21]	S. Kumar ‘Judicial Activism vs Judicial Restraint: A Comparative Review of Landmark Cases’ (2024) 2 Indian Journal of Law 105.
[22]	G. John ‘The Rise of the Hero Judge’ (2001) 24 UNSW Law Journal 753-759.
[23]	S. Kumar ‘Judicial Activism vs Judicial Restraint: A Comparative Review of Landmark Cases’ (2024) 2 Indian Journal of Law 105; also see Choudhary ‘Judicial Activism vs Judicial Restraint: A Comparative Study Between India and USA’ IV India Journal of Integrated Research in Law 1103.
[24]	J. Manuel ‘Judicial Activism in a Violent Context: The Origin, Role and Impact of the Colombian Constitutional Court’ (2004) 4 Washington University Global Studies Law Review 669.
[25]	P Birute ‘Legislative Discretionary Powers of the Executive Institutions in the field of Regulation of Higher Education in Lithuania’ (2011) 18 Jurisprudence 549.
[26]	K. B Mensah ‘Legal Control of Discretionary Powers in Ghana: Lessons from English Administrative Law Theory’ (1998) 14 Africa Focus 122.
[27]	J. H Grey ‘Discretion in Administrative Law’ (1979) 17 Osgood Hall Law Journal 107.
[28]	J. H. Grey ‘Discretion in Administrative Law’ (1979) 17 Osgood Hall Law Journal 114-120.
[29]	N. Meneses et al., ‘The Challenges facing indigenous communities in Latin America as they confront the COVID-19 Pandemic’ (2020) International Journal for Equity in Health 1-3.
[30]	C Doyle ‘State of the World Indigenous Peoples Rights to Lands, Territories and Resources’ (2021) United Nations Department of Economic and Social Affairs 31-82; also see M Mirian ‘Challenges and Opportunities for Indigenous Peoples Sustainability’ (2021) United Nations Department of Economic and Social Affairs 1-6.
[31]	S Kokunda et al., ‘Batwa Indigenous Peoples Forced eviction for Conservation: A Qualitative Examination on Community Impacts’ (2023) 3 PLOS Global Public Health 1-15.
[32]	N Laura ‘For Indigenous Peoples, Losing Land Can Mean Losing Lives’, World Resource Institute (available at https://www.wri.org/insights/indigenous-peoples-losing-land-can-mean-losing-lives, retrieved on 2^nd November 2024 at 12.30 pm.
[33]	See the article published by a Human Rights Group in India, accessed at https://www.iwgia.org/en/india/3314-millions-of-indigenous-peoples-facing-eviction-india.html retrieved on 2^nd November 2024 at 12.00 pm.
[34]	Amnesty International; Kenya: Indigenous peoples targeted as forced evictions continue despite government promises, a statement published on August 9, 2018. See the details in their official website at https://www.amnesty.org/en/latest/news/2018/08/kenya-indigenous-peoples-targeted-as-forced-evictions-continue-despite-government-promises/ retrieved on 2^nd November 2024 at 4:14 pm.
[35]	African Commission on Human Rights and Peoples’ Rights, 276/2003.
[36]	African Court on Human Peoples Rights, 006/202 of 26 May 2017.
[37]	The application was filed under the provisions of article 5(1)(a) of the Protocol.
[38]	United Nations General Assembly Declaration 61/295 of 13^th September 2007.
[39]	Inter-American Court on Human Rights, Merits, Reparations and Costs, No. 309 of 25 November 2015.
[40]	Inter American Court of Human Rights, judgment of March 29, 2006 (Merits, Reparations and Costs).
[41]	Inter American Court on Human Rights, Petition No. 11577.
[42]	See the Inter-American Court in the case of Marry and Carrie Dann vs. United States, Case 11.140, Report No. 113/1, Inter. Am. C. H. R. R (2001).
[43]	Case 12.053, Inter-Am. C. H. R., Report No. 78/00, OEA/Ser. L/V/II. 111, doc. 20, rev. (2000).
[44]	Appeal No. 13 of 2022, East African Court of Justice (Appellate Division) at Arusha (arising from Reference No. 13 of 2017).
[45]	See also the case of Henry Kyarimpa vs Attorney General of the Republic of Uganda, EACJ Appeal Case No .6 of 2014; and the case of Martha Wangari Karua vs. Attorney General of the Republic of Kenya & 2 Others, EACJ Reference No. 20 of 2019.
[46]	See also the decision by the EACJ in the case of Abba Limited vs. the Attorney General of the Republic of Rwanda, EACJ Reference No. 18 of 2018; and the Attorney General of the Republic of Rwanda vs. Plaxeda Rugumba, Appeal No. 1 of 2012.

Cite This Article

Plain Text BibTeX RIS

APA Style

Gaspardus, R. (2025). Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World. International Journal of Law and Society, 8(3), 207-217. https://doi.org/10.11648/j.ijls.20250803.17

Copy | Download

ACS Style

Gaspardus, R. Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World. Int. J. Law Soc. 2025, 8(3), 207-217. doi: 10.11648/j.ijls.20250803.17

Copy | Download

AMA Style

Gaspardus R. Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World. Int J Law Soc. 2025;8(3):207-217. doi: 10.11648/j.ijls.20250803.17

Copy | Download

@article{10.11648/j.ijls.20250803.17,
  author = {Rwebangira Gaspardus},
  title = {Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World
},
  journal = {International Journal of Law and Society},
  volume = {8},
  number = {3},
  pages = {207-217},
  doi = {10.11648/j.ijls.20250803.17},
  url = {https://doi.org/10.11648/j.ijls.20250803.17},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20250803.17},
  abstract = {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.},
 year = {2025}
}

Copy | Download

TY  - JOUR
T1  - Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World

AU  - Rwebangira Gaspardus
Y1  - 2025/08/11
PY  - 2025
N1  - https://doi.org/10.11648/j.ijls.20250803.17
DO  - 10.11648/j.ijls.20250803.17
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 207
EP  - 217
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20250803.17
AB  - 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.
VL  - 8
IS  - 3
ER  -

Copy | Download

Author Information

Rwebangira Gaspardus

Department of Public Law, Catholic University of Mbeya, Mbeya, United Republic of Tanzania

Contact Email

http://orcid.org/0009-0006-6278-9213

Download PDF

Submit an Article

Sections

Plain Text BibTeX RIS

APA Style

Gaspardus, R. (2025). Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World. International Journal of Law and Society, 8(3), 207-217. https://doi.org/10.11648/j.ijls.20250803.17

Copy | Download

ACS Style

Gaspardus, R. Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World. Int. J. Law Soc. 2025, 8(3), 207-217. doi: 10.11648/j.ijls.20250803.17

Copy | Download

AMA Style

Gaspardus R. Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World. Int J Law Soc. 2025;8(3):207-217. doi: 10.11648/j.ijls.20250803.17

Copy | Download

@article{10.11648/j.ijls.20250803.17,
  author = {Rwebangira Gaspardus},
  title = {Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World
},
  journal = {International Journal of Law and Society},
  volume = {8},
  number = {3},
  pages = {207-217},
  doi = {10.11648/j.ijls.20250803.17},
  url = {https://doi.org/10.11648/j.ijls.20250803.17},
  eprint = {https://article.sciencepublishinggroup.com/pdf/10.11648.j.ijls.20250803.17},
  abstract = {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.},
 year = {2025}
}

Copy | Download

TY  - JOUR
T1  - Complementarity of National and International Courts on Protection of Indigenous Peoples’ Right to Ancestral Lands in the Contemporary World

AU  - Rwebangira Gaspardus
Y1  - 2025/08/11
PY  - 2025
N1  - https://doi.org/10.11648/j.ijls.20250803.17
DO  - 10.11648/j.ijls.20250803.17
T2  - International Journal of Law and Society
JF  - International Journal of Law and Society
JO  - International Journal of Law and Society
SP  - 207
EP  - 217
PB  - Science Publishing Group
SN  - 2640-1908
UR  - https://doi.org/10.11648/j.ijls.20250803.17
AB  - 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.
VL  - 8
IS  - 3
ER  -

Copy | Download