RIGHTS AND STATUS OF INDIGENOUS PEOPLES IN INTERNATIONA LAW

Solutions will not be found while indigenous people are treated as victims for whom someone else must find solutions.

Malcolm Fraser

Modern law and policy categorize and classify people from the point of view of eligibility for certain rights. For this reason, definitions of the categories ‘indigenous people’, ‘minority’ and ‘peoples’ are highly disputed. Surprisingly, international law defines neither ‘minorities’ nor ‘peoples’.

Jose R. Martinez-Cobo, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities offered the most widely recognized definition of indigenous peoples, according to whom “indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial times that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as people, in accordance with their own cultural patterns social institutions and legal system”.

Martin Scheinin identifies three key characteristics of indigenous people. First, they are distinctive from the dominant society and they self-identify as different from that society. Second, indigenous people are connected to their lands, which form the central element in their history, culture and economy. Third, indigenous people assert that they are ‘first in time’: that they have occupied their land and territories since ‘time immemorial’.

According to the UN Permanent Forum for Indigenous Issues (PFII), there are 350 to 370 million indigenous people spread across ninety states (UNPFII, 2006, 2008). Estimates suggest that there are at least 5,000 distinct indigenous groups. Therefore, rights of indigenous peoples become of a quite significant importance since no country is currently without an ethnic or national minority or indigenous group(s):

Among the rights of indigenous peoples the right to existence is of special concern. Under Article 2 of the 1951 Genocide Convention, genocide involves specified acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group…” This right is limited in three important ways. First, the Convention requires proof of intent, which is really hard to establish. Further, the Convention omits linguistic groups. Language often binds the group into its culture and distinguishes indigenous and minority groups from dominant population. Finally, the Convention avoids the broader concept of cultural genocide or ethnocide. It took until 1998 for the first individuals to be prosecuted for offences under the Convention. These prosecutors arose from the Rwanda genocide.

In 1957 the ILO convention on the Protection and Integration of Indigenous, Tribal, Semi-Tribal Peoples for the first time articulated as group rights. Being ratified only by twenty-seven state parties, the Convention attempts to reconcile cultural discourses surrounding indigenous people.

Self-determination was intended as the path to decolonization for peoples in the overseas colonies of European powers, not for minority or indigenous peoples within these colonies or within other established states. The group right to self-determination was first articulated in 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples.

Similar ambivalence is clear in the 1965 UN Convention on the Elimination of All Forms of Racial Discrimination (CERD). This Convention reflects the international condemnation of apartheid in South Africa. It also reiterates the right to equality and freedom from discrimination on the grounds of the race of individuals.

The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR) both recognize the right to self-determination in their first articles. Despite the plain meaning of the text, there is a broad legal consensus that the right to self-determination does not apply to indigenous peoples and minorities in the sense of separation from a state.

Declaration on the Rights of Indigenous People sets up special relationship between indigenous peoples and their land. Thus, Articles 25-30 of the Declaration are dedicated to the protection of the rights of indigenous peoples over their traditional lands and resources. However, the Declaration does not specify what exactly the resources, which indigenous peoples have the right ‘to own, use, develop and control”. To further the importance of land rights for indigenous peoples, Article 23 of the Declaration places the emphasis on free and informed consent concerning matters relating to indigenous land. Moreover, under Article 9 of the Convention, CERD emphasized that the State must allow indigenous peoples free participation in decisions affecting them.

The rights of indigenous peoples to culture include the right to the enjoyment and protection of their own cultures in a wider, multicultural world. In order to fully recognize these rights, however, there must be effective participation, with the free, prior and informed consent of indigenous peoples within the State.

In the Convention on the Elimination of All Forms of Racial Discrimination general recommendations, States have been called upon to ensure that ‘member of indigenous people have equal right in respect of effective participation’ and ‘that ‘no decisions are taken without their informed consent’.

The emphasis within the Declaration on participation is the key to reconciling the interests of the state and indigenous peoples, especially in the light of international developments. So, Article 25 expressly affirms the rights of indigenous peoples to maintain and strengthen their distinctive spiritual relationship with their lands and, therefore, the provisions in the Declaration are related to cultural autonomy. The maintenance of a culture is closely linked to particular use of land and natural resources turn out to be the main element distinguishing minorities from indigenous peoples.

The right to health is a fundamental part of human rights law and of our understanding of a life in dignity. The right to the enjoyment of the highest standard of physical and mental health has been a long-standing concern of international human rights law. Internationally, it was first articulated in the 1946 Constitution of the World Health Organization (WHO): the preamble defines health as ‘a state of complete physical, mental a social well-being and not merely the absence of disease…’ The emphasis to achieve ‘the highest attainable standard to physical and mental health; has been referenced within the constitutions of various states, other Declarations and Conventions. Yet, provisions of the ILO Convention # 169, for example in Article 20 (2) (c) provides that the State should provide medical and social assistance while in Article 25 (1-3), although it states that traditional practices should be considered, the overall emphasis is upon the government providing services in co-coordination with other ‘cultural, social and economic measures in the country’. Article 24 of the UN Declaration provides as follows:

1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conversation of their virtual medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services.

2. Indigenous individuals have a right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.

Furthermore, within the Declaration, emphasis is placed upon utilizing traditional medical care, Article 29 (3) provides that States are to ‘take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented’. The International Covenant on Economic, Social and Cultural Rights (Article 2(2)) and the Convention of the Rights of the Child (Article 2(1) identify the following non-exhaustive grounds of discrimination: race color, sex, language, religion, political or other opinion, national or social origin, etc.

According to the Committee in Economic, Social and Cultural Rights, ‘other statuses’ may include health status or sexual orientation. States have an obligation to prohibit and eliminate discrimination on all grounds and ensure equality to all in relation to access to healthcare and the underlying determinants of health.

Much of the explanation about the rights of indigenous peoples as it is seen lies in the politics and economics of colonialism. Profit in the context of international competition depends upon access to territory, raw materials and cheap labour. Even partial recognition of indigenous peoples’ rights would have raised the cost and stalled the pace of growth. Differences between indigenous peoples and settlers were used to justify the denial of recognition of legal personality to indigenous peoples. This denial prevented indigenous peoples from exercising or enjoying sovereignty and self-determination, as well as many other individual and group human rights associated with the right to existence.

States and NGOs must work toward models of governance that provide both for indigenous peoples’ rights to participation in the global arena and for the right to self-determination within the state. State recognition of indigenous peoples’ rights in these ways is an expression of state sovereignty and not a restriction upon it, and ensures that local as well as global governance is inclusive, not exclusive, of those whose life choices and life chances are most affected by decisions, because “we are all indigenous people on this planet, and have to reorganize to get along”.

Bibliography

1. Rehman, J. (2010). International Human Rights Law. Pearson Education Limited

2. Goodhart, M. (2009). Human Rights, Politics and Practice. Oxford University Press

3. Xanthaki, A (2007). Human Rights and United Nations Standards: Self-Determinaion, Culture and Land. Cambridge University Press

4. http://www.un.org/esa/socdev/unpfil/ website of the UN Permanent Forum on indigenous issues

5. http://www.tebtebba.org website of Tebtebba (Indigenous Peoples’ International Centre for Policy Research and Education)

6. http://www.survival-international.org website of survival, a US-based NGO supporting indigenous and tribal peoples worldwide

7. http://www.iwgia.org website of a Denmark-based NGO supporting indigenous peoples’ struggle for human rights and self-determination.

8. http://www.brainyquote.com/quotes/keywords/indigenous.html

Anait Akopyan Gagikovna
Shirakatsi St., b 6, apt 5

Gyumri 3108, Republic of Armenia
+374 93 170 183
anait.akopyan@nm.ru

Yerevan State University

Student of the EaP Regional Master’s Programme in

Human Rights and Democratization

in Armenia, Belarus, Moldova and Ukraine