.Indigenous Rights and United Nations Standards Part 2 doc

Unidroit Convention on Stolen or Illegally Exported Cultural Objects (1995) 206, 222 World Bank Operational Directive (OD 4.20) 134, 260 World Bank Operational Policy on Indigenous Peoples (OP 4.10) 134 Regional documents Africa African Charter on Human and Peoples’ Rights 29–30, 139, 180–1 Article 12 262, 277 Article 20 43 Article 22 43 Article 24 43 Article 29 43 African Charter on the Rights and Welfare of the Child 114 Americas American Convention on Human Rights 180 Article 22 262, 277 Inter-American Declaration on the Rights of Indigenous Peoples 121, 255 Article VIII 262, 277 Inter-American Democratic Charter, 40 ILM (2001), Article 1 160, 190 Inter-American Commission on Human Rights, Report on Brazil 252 OAS General Assembly Resolution AG/RES 1080, 21-0/91 of 5 June 1991 647 Europe Treaty of the European Union, Articles 6–7 160, 190 Statute of the Council of Europe, Article 1(a) 23 Charter of Paris for a New Europe (1990) 160, 185–6, 190 European Community, Resolution on Indigenous Peoples and Development 274 TABLE OF STATUTES xxxv European Convention for Protection of Human Rights and Fundamental Freedoms 160, 180 Fourth Protocol 262, 277 ECHR Recommendation 1201, Council of Europe Parliamentary Assembly text adopted on 1 February 1993 164, 186 Flensburg Proposals, UN Doc. E/CN.4/Sub.2/AC.5/1999/WP.4 162, 191 Helsinki Declaration (Final Act of the Conference on Security and Co- Operation in Europe) 139, 147–8, 156 Principle VII 147 Helsinki Follow-Up (1992) 216 Lund Recommen dations on Effective Participation by National Minorities in Political Life 164 Madrid Convention (Outline Convention on Cross-Border Co-Operation between Territorial Communities or Authorities) 171 Additional Protocol 194 Council of Europe, Framework Convention for the Protection of National Minorities 76, 164, 203 Article 6 22, 42 Article 15 43 CSCE, Geneva Declaration of Experts on National Minorities (1999) 33, 163, 164, 215–16 CSCE, Copenhagen Meeting of the Conference on the Human Dimension 76, 160–1, 164, 185–6, 191, 215 Article 33 209, 231 Paragraph 35 43 Paragraph 36 22, 42 Indigenous Organisations’ documentation Indigenous Peoples’ Preparatory Meeting, Declaration of Principles (1987) 224, 235 Indigenous Peoples’ Preparatory Meeting, Universal Declaration on Indigenous Rights, a Working Paper (1987) 251, 273 xxxvi TABLE OF STATUTES Indigenous Peoples’ Earth Charter, Preamble (Kari-Oca Declaration) 152–3, 188 International Indian Treaty Council, IITC Discussion Paper on Biological Diversity and Biological Ethics, 30 August 1996 231 Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous peoples 153, 188, 224, 233 ‘Promoting the participation of the Sami Peoples’, paper delivered in the Seminar on Good Governance Practices for the Promotion of Human Rights, Seoul, 15–16 September 2004 192 National legislation/documentation Australia Bringing them Home: Report of the National Enquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Parents 124 Native Title Act (1993) 248–9, 253–4 Native Title Amendment Act (1998) 249, 272 Cambodia Land Law (2001) 252 Canada Indian Act (1985) 37 Guatemala Agreement on Identity and the Rights of Indigenous Peoples (1995) 91 Norway Finnmark Act (2003) 257 Pakistan Bonded Labour System (Abolition) Act No. III (1992) 57 Philippines Indigenous Labour Act (1997) 91 Indigenous Peoples Rights Act (1997) 252 TABLE OF STATUTES xxxvii Russian Federation Federal Law on the Guarantees of the Rights of Indigenous Numerically Small Peoples (1999) 166 South Africa Traditional Courts Act (2003) 172 United States General Allotment Act (1887) 31 Indian Reorganization Act (1934) 31 Native American Graves Protection and Repatriation Act (1990) 233–4 National Historic Preservation Act (1966) 233–4 Indian Arts and Crafts Act (1990) 233–4 Venezuela Indigenous Peoples Habitat and Lands, Demarcation and Protection Act (2005) 252 Vietnam Land Law (1988) 244 xxxviii TABLE OF STATUTES Acknowledgments Several people have been instrumental in completing this book. First, I would like to thank the indigenous representatives in the United Nations fora who allowed me to obtain an insight into their struggle. I also owe a special debt to Patrick Thornberry who introduced me to indigenous rights, infected me with his enthusiasm and gave me invalu- able guidance, initially as my supervisor for the doctoral dissertation out of which the book grew and later as a mentor and friend. Dominic McGoldrick also encouraged me and pushed me in ways that went beyond his original involvement as examiner of my dissertation. Gudmundur Alfredsson, the other examiner of the dissertation, provided me with helpful comments and the invaluable opportunity to work closely with the United Nations Special Rapporteur Rodolfo Stavenhagen. My involve- ment with the Special Rapporteur greatly strengthened my knowledge of national practice on indigenous rights and my confidence to write this book; I would like to thank him for both. I would also like to thank James Crawford, Finola O’Sullivan, Jane O’Regan, Wendy Gater and Laurence Marsh for their patience and practical help at all stages of the process and the anonymous assessors for their invaluable comments. Other people who have helped me and encouraged me in different ways include Stephen Allen, Erica-Irene Daes, Julian Burger, Everaldo Fernandez, Nazila Ghanea, Emmanuel Melissaris, George Pavlakos, Constantin Stefanou, Francesca Thornberry and Dawn Sedman. Special thanks to Panos Koutrakos for all his help and advice and to Evaggelia and Ioannis Premetis for being close to me in this journey. My parents, Efthimia and Alexander Xanthakis, provided a constant flow of love and support; their patience and great sense of humour were seriously challenged at times. Finally, without the funny and sometimes serious chats with Helen Xanthaki and the unconditional love, support and at times amazing optimism of Richard Race this book would not have been completed. xxxix Introduction Indigenous rights are currently at the forefront of the international human rights agenda. It is widely recognised that indigenous peoples are among the most marginalised and vulnerable around the world and their human rights situation is in need of urgent attention. International bodies have undertaken the challenge to help improve the situation of these communities. However, opinions differ about the relevant policies of states, the measures that must be taken and, ultimately, the rights that must be recognised as vested in these com- munities. Should they be given special protection? And to what extent? Should they have the right to decide on matters that affect them, even when such decisions affect the wider population of the state? This book will look at the responses that current international law offers to such questions. These questions are already the focus of an ongoing interna- tional discussion, a discussion in which indigenous peoples have managed to secure a strong voice. Although dispersed around the world, their common characteristics and com mon history of oppres- sion, discrimination and disrespect have led to shared claims at th e international level. These communities would se em in the first instance unlikely protagonists of an international movement, because of their vulnerability, their scarce resources and the often limited modes of communicating with other communities due to different languages and poor transport. 1 Yet, since 1977 when over 150 indigenous repre- sentatives attended a United Nations conference on discrimination against their communities, indigenous peoples have been increasingly active at the international level. Through cooperation, they have succeeded to bring the claims of their communities to the forefront of the international agenda and to actively involve international 1 organisations in their struggle. Anghie questions whether the post- colonial world can ‘deploy for its own purpo ses the law which had enabled its suppression in the first place’. 2 This is exactly what indige- nous peoples are trying to do. In their quest for justice, indigenous representatives have placed a lot of faith in the United Nations and its international law. Through tight cooperation, intense lobbying and deep knowledge of the system, they have used openings in the organisation and have created new opportunities for their participation and further influence of the decision-making processes. Grounding their demands on the existing applicable human rights principles, they have articulated a vision for their communities that is different from other actors; a vision they have firmly framed in the language of international law. 3 Although indigenous peoples have not been part of the creation of international law, they have refused to stand on its periphery and have been deter- mined to become equal partners in its evolution. In a relatively short time they have managed to get their voices heard, have shifted attitudes and initiated a wave of intense international support for their claims. This wave of support has been an important factor for the establish- ment of several United Nations fora on indigenou s issues. The most enduring has been the Working Group on Indigeno us Populations (WGIP), widely viewed as a great success of the United Nations system. Established by the Sub-Commission in 1982, just after the Cobo study reported that indigenous peoples are separate peoples who have been denied their rights, the WGIP has been the first body in the inter- national arena entrusted to review developments pertaining to the human rights of indigenous peoples and to give attention to the evolu- tion of standards concerning indigenous rights. 4 The discussions of the group have substantially contributed to the better understanding of past experiences and contemporary claims of these communities and have initiated meaningful exchange of opinions between indigenous representatives and states. Attendance has been monumental for a group of this kind; each session has been attracting up to 700 indivi- duals. The WGIP has been the only United Nations working group where the interested party has shown such commitment and enthusiasm. The WGIP has become an institution and a ‘training field’ for indigenous peoples. 5 Their representatives have constantly been pushing the boun- daries for greater participation in the deliberations of the group and with the help of very supportive chairpersons, not least Erica-Irene Daes, the WGIP Chairperson from mid-1980s until very recently, they have achieved almost equal rights to those of states. From 1985 to 1993, 2 INDIGENOUS RIGHTS AND UNITED NATIONS STANDARDS the group has been working towards a draft Declaration on the Rights of Indigenous Peoples (draft Declaration). After the text was adopted by the Sub-Commission, another w orking group of t he then Commission on Human Rights was created to further elaborate the draft Declaration (Commission Drafting Group). Since the establishment of the Commission Drafting Group, the future of the WG IP has been questioned. Some com- mentators believe that it has a permanent role to play i n securing recog- nition and protection of indigenous rights; others view it as a medium-term forum to be replaced gradually by the Permanent Forum on Indigenous Issues. 6 The future of the Group is further challenged by the recent changes in the UN structure. Still, the WGIP has been an essential platform on the international stage for indigenous peoples from all around the world to come together, articulate their claims and further a common vision about their status. 7 The Commission Drafting Group has been meeting since 1995 to further elaborate the draft Declaration. 8 The polarisation of positio ns on important aspects of the text has had a disastrous effect on progress in adopting the draft Declaration. Agreement on the Declaration has not been reached in 2006; the process has taken much longer than origi- nally anticipated by many and doubts about its eventual success have been expressed during the last few years. Yet, one must not forget the positives that have emerged from the process: international law’s need to protect these communities has been widely accepted; indigenous active participation in the formation and setting up of such protection has also been agreed. Procedurally, indigenous peoples have strength- ened their position: after endless pressure, indigenous representatives have been given the floor as frequently as states; they have been given access to informal consultations with governments; and their proposals have been included in the annual reports to the Commissio n. These are great steps both in general and in terms of the specific, given the high status of the Commission within the previous UN hierarchy, let alone its political nature. In assessing the work of the Commission Drafting Group, the unexpected changes in the opinions of states on controversial rights must also not be forgotten; such changes can be attributed to a degree to the understanding of indigenous peoples’ positions reached after intense and lengthy discussions during the meetings of the Working Group. Such discussions have also exposed the lacunae i n current international law concerning the protection of indigenous peoples and have even challenged the existing system of international human rights. Since its creation the basis of discussion was the text agreed by the INTRODUCTION 3 WGIP, but the text sent and adopted by the newly created Council of Human Rights in 2006 was diluted. The draft was not adopted by the General Assembly in November 2006. Indigenous suggestions for an alternative understanding of several principles of international law have caused profound discussions on issues concerning collective rights, special measures, land claims and restitution. At the core of the debate lies the right of self-determination and the question of whether indige- nous peoples should enjoy it; its radical interpretation by indigenous groups has put into question the understanding of the right as well as its place in international law. These are the issues on which this book will focus, since they are the claims on which the transnational indigenous movement itself has chosen to focus. Increasing awareness of indigenous issues strengthened the argu- ment that a permanent platform for discussion and elaboration of indigenous issues was essential. The idea of a permanent forum, initi- ated by indigenous representatives, members o f the WGIP and many member states of the United Nations, was put forward by the Vienna World Conference and was adopted by the United Nations General Assembly. 9 In April 2000, the Permanent Forum on Indigenous Issues (Permanent Forum) was established as a subsidiary body of the Economic and Social Council. 10 Contrary to both working groups, the Permanent Forum is a permanent body of the ECOSOC (thus very high in the United Nations hierarchy), whose mandate goes beyond human rights to include issues such as economic and social development, culture, the environment, education and health. The Forum has satis- fied claims for sui generis status of indigenous peoples in the United Nations, claims justified on the basis of past injustices that such peoples have suffered 11 and the scale of their cultural differences measured against the populations living in the same states. 12 As indigenous peo- ples are not merely groups organised around particular issues, but long- standing communities with historically rooted cultures and distinct political and social institutions, it was argued that they should be entitled to have a presence in their own right in the international arena, rather than as representatives of a segment of the civil society. 13 The Permanent Forum consists of eight independent experts appointed by the governments and eight selected by indigenous peoples them- selves; 14 this makes the Permanent Forum the first United Nations body whose membership extends beyond governments and independent experts. All these attributes create a valid argument for the Permanent Forum being the most significant step taken so far by the United 4 INDIGENOUS RIGHTS AND UNITED NATIONS STANDARDS [...]... Abo Akademi University, 20 02) ; T Simpson, 12 21 22 23 24 25 26 27 28 INDIGENOUS RIGHTS AND UNITED NATIONS STANDARDS Indigenous Heritage and Self-Determination (IWGIA, 1997); James Crawford, The Rights of Peoples (Oxford: Clarendon Press, 1988) J S Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 1996) For a review of the book, see 47 (1998) ICLQ, 24 4–5 The main exception... Culture and Folklore also protects the culture of sub-national groups, whereas the UNESCO Declaration on Race and Racial Prejudice establishes the responsibility of the state to protect human rights and fundamental freedoms on an equal footing for individuals and groups.61 22 INDIGENOUS RIGHTS AND UNITED NATIONS STANDARDS Current human rights standards adopt a multicultural approach that recognises and. .. Populations (Geneva: United Nations, 1981), paras 3 62 82 34 Ibid., para 380 35 Sub-Commission Resolution 1984/35C, final operative paragraph (d) 36 UN Doc E/CN.4/Sub .2/ 1991/39, 2 14 INDIGENOUS RIGHTS AND UNITED NATIONS STANDARDS this Declaration [on the rights of indigenous peoples] Without this, the Declaration cannot adequately protect our most basic interests This must not be compromised .2 (emphasis added)... UN Doc E/1995 /23 and also UN Doc E/CN.4/1995/L.11/Add .2 para.1 (1995) As quoted in R L Barsh, ‘Indigenous Peoples and the UN Commission on Human Rights: A Case of the Immovable Object and Irresistible Force’ (1996) 18 Human Rights Quarterly 7 82 813 UNGA Resolution 48/163 of 21 December 1993 See ‘A Permanent Forum in the United Nations for Indigenous People: Information Received from Governments and. .. Indigenous Populations: Mandate, Standard-Setting Activities and Future Perspectives’ INTRODUCTION 8 9 10 11 12 13 14 15 16 17 18 19 20 11 in Indigenous Peoples, the United Nations and Human Rights (London: Zed Books, 1998), pp 40–64 at 62 ‘Establishing a Working Group to Elaborate a Draft United Nations Declaration on the Rights of Indigenous Peoples’ (March 1995), Commission on Human Rights, Report on the... family, national community and African cultural 30 INDIGENOUS RIGHTS AND UNITED NATIONS STANDARDS values.103 The United Nations Declaration on Rights Belonging to National or Ethnic, Religious and Linguistic Minorities aims at protecting the identity and existence of minorities.104 More recently, the Rio Declaration recognised the role ‘of indigenous people and their communities and other local communities’... Indian Rights (1996) 32 Latin American Perspectives 38–57 2 A Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 20 04), p 8 3 R Morgan, ‘Advancing Indigenous Rights at the United Nations: Strategic Framing and its Impact on the Normative Development of International Law’ (20 04) 13 Social and Legal Studies 481–500 4 ECOSOC Resolution 19 82/ 34,... theory, to analyse specific rights2 0 and even to offer a radical vision of indigenous rights. 21 However, very few books engage in a comprehensive analysis of current international law standards relevant to indigenous claims .22 This book contributes to this aspect of the debate It evaluates the United Nations instruments that are devoted to the protection of indigenous peoples and assesses whether indigenous... children, immigrants, refugees, women and individuals of other vulnerable groups in order to push them to reach the standards set in general human rights The various instruments on minorities, such as Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic and Linguistic Minorities (Declaration... as the legal basis for land rights The chapter discusses these directions and uses national case law to highlight relevant state practice The rights of indigenous peoples to collectively own land, to participate in decisions about their lands, to manage and use lands they have been living in and their rights to natural resources are discussed in depth; national practice is particularly essential in . on Indigenous Populations: Mandate, Standard-Setting Activities and Future Perspectives’ 10 INDIGENOUS RIGHTS AND UNITED NATIONS STANDARDS in Indigenous Peoples, the United Nations and Human Rights. Convention on Human Rights 180 Article 22 26 2, 27 7 Inter-American Declaration on the Rights of Indigenous Peoples 121 , 25 5 Article VIII 26 2, 27 7 Inter-American Democratic Charter, 40 ILM (20 01), Article. 191, 21 5 Article 33 20 9, 23 1 Paragraph 35 43 Paragraph 36 22 , 42 Indigenous Organisations’ documentation Indigenous Peoples’ Preparatory Meeting, Declaration of Principles (1987) 22 4, 23 5 Indigenous