The Rights of Indigenous Peoples

Contents: Introduction Rights at Stake International Instruments of Protection UN organs for Indigenous People’s Human Rights Resources

"Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development" Draft Declaration on the Rights of Indigenous Peoples, Article 3

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I.  Introduction

Who are Indigenous Peoples?

People who inhabited a land before it was conquered by colonial societies and who consider themselves distinct from the societies currently governing those territories are called Indigenous Peoples.

As defined by the United Nations Special Rapporteur to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Indigenous communities, peoples and nations are

            (Martinez-Cobo, 1984)

Indigenous Peoples worldwide number between 300-500 million, embody and nurture 80% of the world’s cultural and biological diversity, and occupy 20% of the world’s land surface.  The Indigenous Peoples of the world are very diverse.  They live in nearly all the countries on all the continents of the world and form a spectrum of humanity, ranging from traditional hunter-gatherers and subsistence farmers to legal scholars.  In some countries, Indigenous Peoples form the majority of the population; others comprise small minorities.  Indigenous Peoples are concerned with preserving land, protecting language and promoting culture.  Some Indigenous Peoples strive to preserve traditional ways of life, while others seek greater participation in the current state structures.  Like all cultures and civilizations, Indigenous Peoples are always adjusting and adapting to changes in the world.  Indigenous Peoples recognize their common plight and work for their self-determination; based on their respect for the earth.

Despite such extensive diversity in Indigenous communities throughout the world, all Indigenous Peoples have one thing in common - they all share a history of injustice.  Indigenous Peoples have been killed, tortured and enslaved.  In many cases, they have been the victims of genocide.  They have been denied the right to participate in governing processes of the current state systems.  Conquest and colonization have attempted to steal their dignity and identity as indigenous peoples, as well as the fundamental right of self-determination.

Indigenous People or Indigenous Peoples?

The United Nations International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights state that all peoples have the right of self-determination by virtue of which they “freely determine their political status and freely pursue their economic, social and cultural development”. (Part one, Article one, 1966)  However, because there has been dispute over the exact meaning of the term “peoples”, it is not clear exactly to whom “peoples” refers.  Some state governments oppose use of the term “peoples” in regards to Indigenous Peoples because they fear its association with the right of secession and independent statehood.  Those states would prefer the terms “tribes” or “populations”, which do not have those associations.  On the other hand, Indigenous Peoples use the term “peoples” because of its association with inherent recognition of a distinct identity.  “Indigenous People” is a compromise between these two positions.  Indigenous Peoples and their advocates find the denial of being described as “peoples” and the inherent entitlement to self-determination a form of racism and continued discrimination.

II. Rights at Stake

Despite international recognition and acceptance of the Universal Declaration of Human Rights (1948), which guarantees the fundamental rights of all human beings, in practical fact Indigenous Peoples’ human rights remain without specifically designated safeguards.  To this day, Indigenous Peoples continue to face serious threats to their basic existence due to systematic government policies. In many countries, Indigenous Peoples rank highest on such underdevelopment indicators as the proportion of people in jail, the illiteracy rate, unemployment rate, etc.  They face discrimination in schools and are exploited in the workplace.  In many countries, they are not even allowed to study their own languages in schools.  Sacred lands and objects are plundered from them through unjust treaties.  National governments continue to deny Indigenous Peoples the right to live in and manage their traditional lands; often implementing policies to exploit the lands that have sustained them for centuries.  In some cases, governments have even enforced policies of forced assimilation in efforts to eradicate Indigenous Peoples, cultures, and traditions.  Over and over, governments around the world have displayed an utter lack of respect for Indigenous values, traditions and human rights.  

In international discussions on the protection and promotion of Indigenous People’s human rights, some States have argued that a more conscientious application of human rights standards would resolve the issue.  On the other hand, Indigenous Peoples argue that such international human rights standards have consistently failed to protect them thus far.  What is needed, they argue, is the development of new international documents addressing the specific needs of the world’s Indigenous Peoples.  Although the Universal Declaration of Human Rights is designed to protect the human rights of all individual human beings, international law concerning collective human rights remains vague and can fail to protect the group rights of Indigenous Peoples.  

III. International Instruments for the Protection of Indigenous Peoples’ Human Rights

International legal instruments take the form of a treaty (also called agreement, convention, covenant, protocol), which may be binding, on the Contracting States.  When negotiations are completed, the text of a treaty is established as authentic and definitive and is “signed" to that effect by the representatives of states.  There are various means by which a state expresses its consent to be bound by a treaty.  The most common are ratification or accession.  A new treaty is "ratified" by those states that have negotiated the instrument.  A state, which has not participated in the negotiations, may, at a later stage, "accede" to the treaty.  The treaty enters into force when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty.  Reservations may normally be withdrawn at any time.  In some countries, international treaties take precedence over national law; in others, a specific law may be required to give an international treaty, although ratified or acceded to, the force of a national law.  Practically all states that have ratified or acceded to an international treaty must issue decrees, amend existing laws or introduce new legislation in order for the treaty to be fully effective on the national territory.

Not all international instruments are legally binding treaties. For example, some of the most important human rights instruments are declarations. A declaration does not have any legal power to enforce compliance, but rely purely on the moral weight it carries.

Indigenous Peoples rights overlap with many other human rights.  Many important Indigenous Peoples rights are not framed in specific Indigenous Peoples rights treaties, but are part of more general treaties, like the Universal Declaration of Human Rights or the Convention on the Prevention and Punishment of the Crime of Genocide.

United Nations

This is the most comprehensive statement of the rights of Indigenous Peoples to date, establishing collective rights to a greater extent than any other document in international human rights law.  It establishes the rights of Indigenous Peoples to the protection of their cultural property and identity as well as the rights to education, employment, health, religion, language and more.  It also protects the right of Indigenous Peoples to own land collectively.  Although States are not legally bound by the Declaration, it will exert a considerable amount of moral force when adopted by the General Assembly.  Consisting of 45 Articles, the draft Declaration is divided into nine parts:

Part 1.  Fundamental Rights  Part 2.  Life and Security     Part 3.  Culture, Religion, and Language Part 4.  Education, Media, and Employment Part 5.  Participation and Development

Part 6.  Land and Resources Part 7.  Self Government and Indigenous Laws Part 8.  Implementation Part 9. Minimum Standards

Originally drafted by the Working Group on Indigenous Populations, the world’s largest human rights forum, in 1985, the draft Declaration was adopted by the United Nations Sub-Commission on the Promotion and Protection of Human Rights in 1994.  From there, the draft was submitted to the Commission on Human Rights, which established the Working Group on the draft Declaration on the Rights of Indigenous Peoples.  The Working Group, in which more than 200 Indigenous organizations participate, meets once a year.  Its goal is to facilitate the General Assembly’s adoption of the Declaration by 2004, the final year of the International Decade for the World’s Indigenous Peoples. 

The Universal Declaration of Human Rights is the first international document that states that all human beings are “equal in dignity and rights.” (Article 1)  Everybody is entitled to the rights in the 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.” (Article 2)

Genocide means any of the following acts which have the intention of destroying, in whole or in part, a national, ethnical, racial or religious group: “killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent birth within the group; forcibly transferring children of the group to another group.” (Article 2)

This Covenant outlines the basic civil and political rights of individuals.  There are also provisions for collective rights.  “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” (Article 27)

This Covenant describes the basic economic, social, and cultural rights of individuals.  It also has provisions for collective rights.

"Racial discrimination" is defined as "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life."  (Article 1)

The ILO Indigenous and Tribal Peoples Convention was the first international convention to address the specific needs for Indigenous Peoples human rights.  The Convention outlines the responsibilities of governments in promoting and protecting the human rights of Indigenous Peoples. 

The Convention contains regulations and suggestions relevant to Indigenous Peoples on the non-discrimination of children (Article 2), the broadcasting of information by the mass media in minority languages (Article 17), the right to education, including education on human rights, its own cultural identity, language and values. (Article 29)  Article 30 states that children of minorities or indigenous origin shall not be denied the right to their own culture, religion or language. (Article 30)

This Declaration deals with all minorities, which includes many of the world’s Indigenous Peoples.  It only concerns individual rights, although collective rights might be derived from those individual rights.  The Declaration deals both with states’ obligations towards minorities as well as the rights of minority people.  Topics that are dealt with include the national or ethnic, cultural, religious or linguistic identity of minorities (Article 1); the free expression and development of culture; association of minorities amongst themselves; participation in decisions regarding the minority (Article 2); the exercise of minority rights, both individual and in groups (Article 3); and education of and about minorities. (Article 4)

These two documents are connected to the Earth Summit in Rio de Janeiro.  In them, the special relationship between Indigenous Peoples and their lands is acknowledged. Indigenous Peoples have a vital role in environmental management and development because of their traditional knowledge and practices. (Rio Declaration, Principle 22)  In order to fully make use of that knowledge, some Indigenous Peoples might need greater control over their land, self-management of their resources and participation in development decisions affecting them. (Agenda 21, Chapter 26.4)

The Convention calls upon its signatories to “respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices;”  (Article 8(j))

The Vienna Declaration is the closing declaration of the 1993 World Conference on Human Rights held in Austria.  It “recognizes the inherent dignity and the unique contribution of indigenous people [sic] to the development and plurality of society and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being.” (I.20)

Furthermore, the declaration called for the completion of the draft Declaration on the Rights of Indigenous Peoples, the renewal and updating of the mandate of the Working Group on Indigenous Populations and the proclamation of the International Decade of Indigenous Peoples. (II.28 – 32)

At the Conference it was agreed that the perspectives and needs of Indigenous Peoples should be included in population, development or environmental programs that affect them, that they should receive population- and development-related services that are socially, culturally and ecologically appropriate. (Paragraph 6.24)  Another important decision was that Indigenous Peoples should be enabled to have tenure and manage their land, and protect the natural resources and ecosystems on which they depend. (Paragraph 6.27)

The Durban Declaration and Programme of Action has a specific section dealing with Indigenous Peoples issues.  Perhaps more important than all the recommendations is the fact that the Declaration is the first United Nations document that uses the phrase “Indigenous Peoples” rather than “Indigenous People”.

European Union (EU)

This resolution provides the main European Union guidelines for support of Indigenous Peoples.  It calls for the integration of Indigenous Peoples’ interests in all levels of development cooperation and the full and free participation of Indigenous Peoples in the development process.  The resolution states:  “Indigenous cultures constitute a heritage of diverse knowledge and ideas, which is a potential resource for the entire planet.”

Organization for Security and Cooperation in Europe (OSCE)

The Office of the OSCE High Commissioner on National Minorities was established in 1992 to identify and seek early resolution of ethnic tensions that might endanger peace, stability or friendly relations between OSCE participating States.  The High Commissioner has no specific Indigenous Peoples mandate, but treats Indigenous Peoples like any other national minority.

Organization of American States (OAS)

The draft Declaration outlines the human rights that are specific to Indigenous Peoples.  Items covered include, among others, the right to self-government, indigenous law and the right to cultural heritage. A Working Group of the OAS is still discussing the Declaration.

World Bank

This Operational Directive outlines the World Bank's definition of and interest in Indigenous Peoples.   It also addresses economic issues (technical assistance and investment project mechanisms) concerning Indigenous Peoples.  The Bank’s narrow definition of Indigenous Peoples and ambiguity concerning its role in their economic development has resulted in much criticism from Indigenous People’s human rights advocates.  Consequently, the World Bank is currently in the process of revising it.  A draft of the new Directive 4.10 is available on the World Bank website.

IV. United Nations Organs for Indigenous People’s Human Rights

UN Working Group on Indigenous Populations

The United Nations Working Group on Indigenous Populations, a subsidiary organ of the Sub-Commission on the Promotion and Protection of Human Rights, is the first and only UN body involved exclusively with matters concerning the human rights of Indigenous Peoples.  It reviews national developments concerning the promotion and protection of Indigenous Peoples’ human rights and develops international standards for Indigenous Peoples’ human rights and freedoms.  The Working Group also undertakes studies on a variety of issues affecting Indigenous Peoples.  Nearly 700 persons regularly attend the Working Group sessions, including observers for Governments, Indigenous Peoples, non-governmental organizations, and scholars. 

UN Permanent Forum on Indigenous Issues

In 2000, the Economic and Social Council (ECOSOC), one of the six main organs of the United Nations, established the Permanent Forum on Indigenous Issues to consider a wide range of issues affecting Indigenous Peoples.  The Forum, which includes eight Indigenous experts, is the first and only international body in the United Nations that has Indigenous Persons as members.  It meets once a year for ten working days and submit annual reports to the Economic and Social Council.  The first meeting was May 13-24, 2002. The Permanent Forum serves as an advisory board to the Economic and Social Council, discussing Indigenous issues relating to economic and social development, culture, the environment, education, health, and human rights.  From these discussions, the Forum provides expert advice and recommendations to the Council, raises awareness of Indigenous issues within the UN system, and prepares and disseminates information on Indigenous issues. 

UN Working Group on the Draft Declaration on the Rights of Indigenous Peoples

This Working Group of the Commission on Human Rights meets once a year and is responsible for reviewing and debating the draft Declaration.  The Declaration will be non-binding for States, however, it will serve as a powerful statement of universally accepted norms as it will be adopted by consensus of all member states of the UN and will provide a strong basis for arguing for greater legal protection for indigenous rights in many countries.

UN Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous peoples

Rodolfo Stavenhagen was appointed as the first Special Rapporteur on Indigenous Peoples on 24 April 2001.  His mandate is as follows: to gather information on violations of human rights and fundamental freedoms of Indigenous Peoples, to formulate recommendations to prevent and remedy such violations and to work together with other experts of the UN Commission on Human Rights and of the Sub-Commission on the Promotion and Protection of Human Rights.  The Rapporteur cooperates closely with the Permanent Forum on Indigenous Issues and the Working Group on Indigenous Populations.