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Affinities

Posts of Janet Chernela, anthropology professor at the University of Maryland.

04 December 2004

THE RIGHTS OF INDIGENOUS PEOPLES:

INTRODUCTION

Approximately 300 million indigenous peoples, representing 5,000 distinct cultures, live in over 70 countries on five continents. The UN defines the designation Indigenous peoples as "first peoples, tribal peoples, aboriginals and autochthons. They have a historical continuity with pre-invasion and pre-colonial societies that developed on their territories. They consider themselves distinct from other sectors of society now prevailing in those territories."
Indigenous peoples have been expulsed from their lands, prohibited from using their languages and practicing their life styles. Today they are among the most vulnerable and poorest populations in the world (OIT/ILO 2003; AIUSA 2003). In recent years Indigenous peoples have become increasingly involved in the shaping of international procedures involving their human rights. The following is a brief summary of some of the concrete actions taken, including international conventions, treaties, and declarations, whose goals are to recognize and protect the rights of indigenous peoples. The earlier part of the chronology establishes a context for the more recent events; the chronology is followed by abridged texts of the most relevant documents.


CHRONOLOGY

International

1919 International Labour Organization (ILO) created by the Versailles Treaty and affiliated with the League of Nations. In 1946 the ILO became a special agency of the United Nations with headquarters in Geneva.
1923 Representatives of Six Nations of the Iroquois appealed to speak before the League of Nations in Geneva and were denied. Chief Deskaheh addressed the Swiss public.
1924 Delegation of Maori representatives in London denied access to King George. The same delegation denied approval to speak before the League of Nations in 1925.
1945 The United Nations is established. According to its Charter: "The purposes of the United Nations are . . . to achieve international co-operation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language and religion . . .. " (Preamble, Charter of the United Nations)
1948 Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations. A portion of Article 1 states that: "All human beings are born free and equal in dignity and rights…" (See Appendix I). Article 2 includes the wording: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty" (UDHR). (See Appendix I.)
1952 ILO initiates Andean Indian Program.
1953 ILO publishes the first international report on indigenous peoples, "Indigenous Peoples: Living and Working Conditions of Aboriginal Populations in Independent Countries."
1957 ILO adopts Indigenous and Tribal Populations Convention no. 107. This Convention is the first international juridical instrument to address indigenous peoples and their rights. Twenty-seven countries ratified this Convention.
1962 The Committee on the Elimination of Racial Discrimination (CERD) was created by the United Nations to monitor the compliance of signatories to international human rights treaties. It requires state parties to submit periodic reports on implementation of treaty norms to UN Secretary-General and publishes these reports annually. CERD is empowered to receive and consider complaints.
1965 The International Convention on the Elimination of All Forms of Racial Discrimination is the first legal instrument adopted by the UN General Assembly that holds signatory states binding to its principles of commitment toward the elimination of all forms of racial discrimination. Today 128 states are parties to this Convention.
1966 International Covenant on Civil and Political Rights (ICPPR). Like the CERD Convention, ICPPR is empowered to monitor and review actions by states to fulfill their obligations as stipulated in human rights agreements. As a treaty-based instrument, it maintains complaint procedures to enforce the norms articulated in the treaties to which the body is attached. It publishes reports on state compliance. There are at least 148 ratifications of the ICCPR
1966 [off. 1976] International Covenant on Economic, Social and Cultural Rights (ICESCR). This Covenant details the economic, social and cultural rights enumerated earlier in the Universal Declaration on Human Rights and is legally binding on those countries that have ratified it. Together, the UDHR, ICCPR, and the ICESCR are known as the International Bill of Rights. The ICESCR includes the right to work, to just and favorable conditions of work, to form and join trade unions; to attain adequate standards of living; to enjoy the highest standards of health and education; and to participate fully in cultural and civic life. It prohibits all forms of discrimination in the access to and enjoyment of these rights.
1977 NGO rally on behalf of indigenous peoples. Approximately 200 indigenous delegates attended a conference of non-governmental organizations (NGOs) against the discrimination of indigenous people.
1980 ILO Convention 107 criticized as encouraging assimilation and integration. These criticisms led to the formation in 1982 of the United Nations Working Group on Indigenous Populations. ILO Convention 107 was substituted in 1989 by ILO 169.
1982 UN Working Group on Indigenous Populations
Part of the UN Sub-Commission on the Promotion and Protection of Human Rights (established according to Economic and Social Council Resolution 1982/34), the Working Group on Indigenous Populations was established to promote and protect indigenous peoples' human rights and fundamental freedoms by developing international standards, measures, and review mechanisms related to indigenous rights. The Working Group has played an important role in increasing the participation of indigenous people in the formation of international policies. Meeting annually in Geneva since 1982, it has become one of the largest UN forums on human rights, with hundreds of indigenous representatives in attendance.
1985 United Nations Voluntary Fund for Indigenous Populations
The United Nations Voluntary Fund for Indigenous Populations was established in 1985 with the purpose of assisting representatives of indigenous communities and organizations to participate in the deliberations of the Working Group.
1987 The Committee on Economic, Social and Cultural Rights was established to monitor the progress of countries towards fully implementing the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Committee also formulates General Comments that clarify what countries must do to comply with the ICESCR.
1989 ILO Indigenous and Tribal Peoples Convention No. 169
This convention is the first international instrument to recognize self-identification of indigenous and tribal peoples as a fundamental criterion. It specifies the rights of indigenous peoples to their lands, traditions, languages, and to all human rights without discrimination. It specifies the requirement that indigenous peoples be consulted in matters concerning them and that no form of coercion may be used in violation of their rights. It calls for "special measures" to be adopted, if necessary, in order to safeguard the persons, institutions, property, labour, cultures and environment of the peoples concerned. (See Appendix II.)
1993 Draft Declaration on the Rights of Indigenous Peoples
In 1985, following its mandate, the Working Group on Indigenous Populations initiated discussions toward a United Nations Declaration on the Rights of Indigenous Peoples. In July 1993 the Working Group agreed upon and presented a final text for the draft declaration, based on reports to the Working Group in eight years of documentation. The draft declaration is currently under review by a Working Group within the Commission on Human Rights. According to the UN Office of the High Commissioner for Human Rights (OHCHR), the draft Declaration is, in UN terms, "quite young," and it is expected that final deliberations on the text will be difficult. Significant disagreements remain between indigenous representatives and governments. The process of debate should contribute to raising awareness about indigenous rights and the processes necessary to secure them.
1993 The United Nations proclaimed 1993 the Year of Indigenous Populations
1993 World Conference on Human Rights in Vienna. The Vienna Declaration and Programme of Action recommended that a permanent forum on indigenous issues be established within the framework of the United Nations International Decade of the World's Indigenous Peoples (1995-2004).
1994 The General Assembly of the United Nations proclaimed 1995-2004 the International Decade of the World's Indigenous Peoples. The stated goals were to strengthen international cooperation to resolve problems faced by indigenous peoples in areas including human rights, environment, development, education and health. Numerous international indigenous rights training programs grew out of the "decade," including the annual indigenous fellowship program of the UN Office of the High Commissioner for Human Rights.
2000 The Permanent Forum on Indigenous Issues
In 2000 the UN Economic and Social Council (ECOSOC) adopted a resolution to establish a Permanent Forum on Indigenous Issues. The first two sessions of the Permanent Forum, the highest-level international body ever empowered to deal with the rights and needs of indigenous populations, were held in May of 2002 and 2003. The Forum is comprised of sixteen members, eight to be nominated by governments and elected by the council and eight to be appointed by the President of the Council following formal consultation The Forum's mandates are to 1) provide advice and recommendations on indigenous issues to ECOSOC, as well as to programs, funds, and agencies of the UN, through the Council; 2) raise awareness and promote integration and coordination of activities relating to indigenous issues within the UN system; and 3) prepare and disseminate information on indigenous issues.
2001 Special Rapporteur of Human Rights and Indigenous Issues
The role of the Special Rapporteur, as specified by the Commission on Human Rights Economic and Social Council, includes furthering the purposes set out by the United Nations' Charter to promote and encourage respect for human rights and for all, as well as to specifically recognize, promote, and protect more effectively the human rights and fundamental freedoms of indigenous peoples. Functions of the Rapporteur include compiling information on human rights, health care, resource access, public participation, development, and education of indigenous peoples in order to formulate proposals to prevent, monitor, and remedy violations of the rights and freedoms of indigenous people. It is expected that the Special Rapporteur will work with other UN bodies in strengthening international cooperation toward the achievement of these goals. The Rapporteur appointment is three years. The first report of the Special Rapporteur on the impacts of large development projects on indigenous peoples is available.

The Americas
1948 Organization of American States (OAS). Originally established in 1890 as the International Union of American Republics, it became in 1910 the Pan American Union, and finally, adopted with charter in Bogota, Colombia, 1948, as the Organization of American States. The stated purposes of the Organization are to strengthen peace and security in the hemisphere; promote representative democracy; ensure the peaceful settlement of disputes among members; to provide for common action in the event of aggression; and to promote economic, social, and cultural development. Human rights in the inter-American system are based upon the American Declaration of the Rights and Duties of Man, dating to the 1948 formation of the OAS.

1959 The Inter-American Commission on Human Rights (IACHR). One of the organs of the OAS, the Commission is made up of seven members, elected in their individual capacity by the General Assembly. The Commission's principal function is to promote the observance and protection of human rights among all member States and to serve as a consultative organ of the Organization in these matters. The Inter-American Commission on Human Rights (IACHR) is distinguished from other multilateral human rights entities by its political autonomy. Its seven commission members are elected in their own right, not as representatives of governments. IACHR autonomy is further enhanced by its prerogative to initiate human rights investigations without the approval of the Secretary General or the Permanent Council.
1969 American Convention on Human Rights. This Convention is based on the non-discrimination and equal protection provisions of the OAS Charter, the American Declaration, the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the Universal Declaration of Human Rights. The United States signed the American Convention on Human Rights in 1977, but has not yet ratified it.
1992 The Inter-American Court of Human Rights, based in San José, Costa Rica, was established by the American Convention on Human Rights. It is an autonomous juridical institution of the OAS whose purpose is to interpret and apply the American Convention on Human Rights. The Inter-American Court of Human Rights has jurisdiction to adjudicate claims alleging violations of the American Convention on Human Rights, the American Declaration of the Rights and Duties of Man, and other international conventions on human rights in the American States. Provisions of the court hold that its decision be binding on all members of the Organization of American States, whether or not they have ratified certain of the Conventions that formed the basis of the opinion.
2001 Mayagna (Sumo) Awas Tingni Community v. Nicaragua is a landmark case decided by the Inter-American Court of Human Rights. The Court interpreted the principle of the human right to enjoy the benefit of property, as affirmed in the American Convention on Human Rights, to include the right of indigenous peoples to the protection of their customary land and resources. The court held that the state of Nicaragua violated the traditional property rights of the Awas Tingni community. The case is important because 1) it is the first case involving indigenous peoples to come before the Court; 2) it recognizes unwritten, communal, traditional rights over codified colonial laws; and 3) the decisions of the Court are binding upon the State.












APPENDIX I
Universal Declaration of Human Rights

Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations 1948. In one international declaration, covenant and convention after another since the United Nations was founded, States have accepted that all members of the human family have equal and inalienable rights, and have made commitments to assure and defend these rights.
PREAMBLE
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, Therefore, THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3. Everyone has the right to life, liberty and security of person.
Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6. Everyone has the right to recognition everywhere as a person before the law.
Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.


APPENDIX II:
Excerpts from the International Labour Organization
Indigenous and Tribal Peoples Convention, ILO # 169

Art. 3.1. "Indigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. ..
Art. 3. 2. No form of force or coercion shall be used in violation of the human rights and fundamental freedoms of the people concerned.
Art. 4.1 Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.
Art. 4.2 Such special measures shall not be contrary to the freely-expressed wishes of the peoples concerned.
Art. 6.1 In applying the provisions of this Convention, governments shall a) consult the peoples concerned…
Art. 12 The peoples concerned shall be safeguarded against the abuse of their rights and shall be able t take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights. Measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings…
Art 13.2 The use of the term "lands" …shall include the concept of territories, which covers the environment of the areas which the peoples concerned occupy and otherwise use.
Art 14.1 The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
Art. 18 Adequate penalties shall be established by law for unauthorised intrusion upon, or use of, the lands of the peoples concerned, and governments shall take measures to prevent such offences.
Art 16 "…The peoples concerned shall not be removed from the lands which they occupy..(and see other paragraphs).



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