Indigenous peoples and cultural identity. Analysis of a human right for its constitutional recognition

Abstract

The article aims to review the content and scope of cultural identity within international human rights law, understanding this protection system as the legal foundation that upholds this right and mandates its protection. The various approaches and obligations established by these instruments will be analyzed, considering their enforceability depending on whether they fall under soft law or hard law in the international framework. The principle of self-determination and the concept of Indigenous peoples will be examined to understand why they qualify as rights-bearing subjects. Subsequently, doctrinal concepts related to this right will be briefly outlined, followed by an exploration of its normative foundation. The study will then analyze the different definitions provided in various international instruments, as well as the content addressed by the Inter-American Court of Human Rights and the European Court of Human Rights, demonstrating the international standards on this matter as common minimums that States must project and uphold. Finally, the article argues that rather than being merely a fundamental right, cultural identity is a human right. Recognizing self-determination for these subjects implies acknowledging their cultural identity as a human right, which, in turn, obligates States to transform their structures to create spaces for the practical exercise of this right.