INDIGENOUS PEOPLES’ RIGHTS AND SELF-DETERMINATION

 

BY Dr. Sarah Pritchard

1 Who are the world’s Indigenous peoples?

2 Working Group on Indigenous Populations (WGIP)/ Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)

3 Declaration on the Rights of Indigenous Peoples

4 Overview of the WGIP’s Draft Declaration

5 Commission on Human Rights Working Group on the Draft Declaration (CHRWG)

6 The Human Rights Council adopts the Declaration on the Rights of Indigenous Peoples

7 The General Assembly adopts the Declaration on the Rights of Indigenous Peoples

8 Permanent Forum on Indigenous Issues

9 Special Rapporteur on the situation of the human rights and fundamental freedoms of Indigenous people

10 The International Labour Organisation (ILO) and Indigenous peoples

11 ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No 169)

12 The History of Self-Determination

13 Indigenous peoples and the principle of self-determination

14 States and the principle of Indigenous peoples’ self-determination

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1. Who are the world’s Indigenous peoples?

Indigenous peoples are the original inhabitantsof many countries. They are also called first peoples, tribal peoples, aboriginal peoples, autochthons and, sometimes, the “Fourth World”.

Indigenous peoples number about 300 million. They live in more than 70 countrieson all five continents, from the Arctic to the Amazon, from the Sahara to Australia. They include the Indians of the Americas, the Inuit of the circumpolar region, the Saami of Northern Europe and the Maori of Aoteoroa (New Zealand).

The majority- more than 150 million - live in Asia, in countries such as Bangladesh, Burma, China, India, Indonesia, Japan, Malaysia, Pakistan, the Philippines Sri Lanka and Thailand. Around 30 million indigenous people live in Latin America. In Bolivia, Guatemala and Peru, Indigenous peoples make up over half the population.

Colonisation:During the period of European colonial expansion, many Indigenous peoples were wiped out and their land taken by force. They experienced massacres, forced relocations, removal of their children and other forms of assimilation. In Asia and Africa, artificial colonial bordershave separated peoples or turned them into powerless minorities.

Distinct cultures, attachment to land: Indigenous peoples have diverse cultures, religions and forms of social and economic organisation. Some maintain traditional lifestyles. Others live in cities and towns. However, all share a strong sense of their distinct cultures, most of all a profound attachment to their traditional land. They are united in a desire to maintain their unique identitiesand to adapt and survive as distinct peoples.

Economic and social disadvantage: Despite their diversity, Indigenous peoples face similar problems. They are among the most disadvantaged groupson Earth. They are subjected to slavery and forced labour. They face discrimination, poverty, poor health, unemployment and high rates of imprisonment. Their land and resources are threatenedby deforestation, mining, dam and irrigation projects, road construction, toxic waste dumping, nuclear testingand other aspects of development.

International action: Around the world, Indigenous peoples have struggled to gain control over their land and lives and recognition of their rights. The concerns of Indigenous peoples have become a concern of the international community. In 1982, the United Nations established a Working Group on Indigenous Populations (WGIP).

United Nations definition: In the interests of flexibility and openness, the UN has not developed a formal definitionof Indigenous peoples. As a guide, the WGIP has used the definition prepared by Jose Martinez Cobo. The Martinez Cobo definitionstates that Indigenous communities, peoples and nations:

· have a historical continuitywith pre-invasion and pre-colonial societies that developed on their territories;

· consider themselvesdistinctfrom other sectors of the societies now prevailing in those territories;

· form non-dominant sectors of society;

· are determined to preserve and transmit to future generations their ancestral territories as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.

In addition, an Indigenous person:

· belongs to Indigenous peoples through self-identificationas Indigenous;

· is recognized and acceptedby these peoples as one of its members.

2. Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) and Working Group on Indigenous Populations (WGIP).

The Expert Mechanism on the Rights of Indigenous Peopleswas formed by HRC resolution on 18 June 2007. The Expert Mechanism is mandated to give thematic expertise on the rights of Indigenous peoples to the Council and has a focus on:

• studies and research-based advice; and
• suggestion for proposals to the HRC for its considerations and approval.

The first and second sessions of the mechanism were held in October 2008 and August 2009 in Geneva. Both sessions undertook studies on ‘Indigenous people’s right to education’. The third session in July 2010 focuses on ‘Indigenous peoples and the right to participate in decision-making’.

The mechanism is composed of five Indigenous experts, who serve for three years. The UN Office of the High Commission on Human Rights provides secretariat support to the mechanism.

The mechanism superseded theWorking Group on Indigenous Populations, which held its first session at Geneva in August 1982 with the following mandate:

· review developmentspertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations; and

· give special attention to the evolution of standardsconcerning the rights of such populations.

At its early sessions, the WGIP focused primarily on the review of developments, with a focus on Indigenous "real-life experiences". The review of developments assisted understanding of the historical experiences and contemporary aspirations of Indigenous peoples. This understanding provided the framework for the elaboration in the WGIP of standards on the rights of Indigenous peoples.

In its later years, the WGIP review of developments addressed a “principal theme” such as “Indigenous peoples and globalization” (2003) and “Indigenous peoples and the international and domestic protection of traditional knowledge” (2005).

EMRIP

c/o OHCHR, United Nations
1211 Geneva 10, Switzerland

tel. (+41 22) 928 9676; (+41 22) 928 9676/ 9640 / 9162 - fax (+41 22) 928 90 66
Email: expertmechanism@ohchr.org

List of new members of EMRIP approved by HRC in March 2011:

• Mr. Vital BAMBANZE (Burundi) will serve for a term expiring in 2012.
• Ms. Anastasia CHUKHMAN (Russian Federation) will serve for a term expiring in 2013.
• Ms. Jannie LASIMBANG (Malaysia) will serve for a term expiring in 2014.
• Mr. Wilton LITTLECHILD (Canada) will serve for a term expiring in 2014.
• Mr. José Carlos MORALES (Costa Rica) will serve for a term expiring in 2013

3. Origin of the Declaration on the Rights of Indigenous Peoples

After discussion of various options, the WGIP decided at its fourth session in 1985that it should aim to produce "a draft declaration on indigenous rights" for eventual adoption and proclamation by the UN General Assembly.

At the WGIP’s sixth session in1988, the Chairperson tabled a working paper containing adraft Universal Declaration on Indigenous Rights. In 1989a Revised Draft Universal Declaration on the Rights of Indigenous Peopleswas published for discussion. During its eighth and ninth sessions in 1990 and 1991, the WGIP established informal drafting groups to continue the revision process. In 1991the Preamble and first three operative Parts of the Declaration of the Rights of Indigenous Peoples were submitted by the members of the Working Group at first reading.

At its tenth session in 1992, the WGIP had before it paragraphs agreed upon at first reading as further elaborated by the Chairperson, as well as paragraphs not yet considered at first reading.[1]During the session a first reading of all paragraphs was completed and a second reading commenced. At the WGIP’s eleventh session in 1993, members of the Working Group agreed upon a final text of the Draft Declaration.

At the conclusion of its twelfth session in 1994, the WGIP submitted the text of the Draft Declaration to its parent body, the Sub-Commission. The members of the Working Group were of the opinion that the text “was comprehensiveand reflected the legitimate aspirations of indigenous peoplesas a whole, as well as a number of suggestions and concerns advanced by Observer Governments.” Indigenous representatives emphasised the importance of maintaining the integrity of the WGIP’s Draft Declaration. The Inuit Circumpolar Conference stated:

The need to preserve the integrity of the entire text is going to be a very important issue when the member States start the process of redrafting the various provisions. Serious consideration will have to be given by Indigenous Peoples whether the Draft Declaration can be supported after the governments have completed their analysis and made revisions.

4. Overview of the WGIP Draft Declaration

The Draft Declaration, adopted by the WGIP, was divided into eight parts, each of which addresses particular thematic concerns. A ninth part contained miscellaneous provisions.

Part I outlinesGeneral Principles. Articles 1, 2 and 5 proclaim the rights of indigenous peoples to equality, freedom from adverse discrimination and nationality. Article 3 provides:

Indigenous peoples have the right of self-determination. By virtue of this right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4 recognises the right of indigenous peoples to maintain and develop their distinct characteristics and legal systems, while participating fully in the life of the State.

Part II (Articles 6-11), affirms the right of indigenous peoples to physical existence, integrity and securityand to full guarantees against genocide, including the removal of indigenous children. There is recognition of the rights of indigenous peoples:

· to live in freedom, peace and security as distinct peoples and to full guarantees against genocide, including the removal of children(Article 6);

· not to be subjected to ethnocide or cultural genocide, including prevention of and redress for dispossession, imposed assimilation and integration(Article 7);

· to maintain and develop distinct identities and characteristics, including the right of self-identification(Article 8);

· to belong to an indigenous community or nation (Article 9);

· not to be forcibly removedfrom their lands or territories (Article 10); and

· to special protection and security in periods of armed conflict(Article 11).

Part III (Articles 12-14) proclaims rights connected with the cultural, spiritual and linguistic identityof indigenous peoples, including the rights:

· to practise and revitalise cultural traditions and customs(including to restitution of cultural, intellectual, religious and spiritual property) (Article 12);

· to practice and develop spiritual and religious traditions(including to have access to religious and cultural sitesand to the repatriation of human remains) (Article 13); and

· to the revitalisation, use and transmission of histories, languages, oral traditions, writing systems and literature (Article 14).

Part IV includeseducational, information and labour rights:

· the right of indigenous children to all forms and levels of education of the State, as well as the right of indigenous peoples to to their own educational institutions, providing education in indigenous languages (Article 15);

· the right of indigenous peoples to have their cultures and aspirations reflected ineducation and public information(Article 16):

· to establish their own mediain their own languages (Article 17); and

· to international labour lawand national labour legislation (Article 18).

Part V(Articles 19-24) is concerned with participatory rights, as well as the right to development and other social and economic rights, including the rights to:

· to participatefully in all levels of decision-makingand implementation in matters affecting their rights, lives and destinies; and in devising legislative or administrative measuresthat may affect them. States are required to obtain their consentbefore adopting and implementing such measures (Articles 19-20);

· to their political, economic and social systems, to their own means of subsistence and development, and to their economic activities(Article 21);

· to special measuresfor the improvement of their economic and social conditions (Article 22);

· to develop and determine priorities and strategies for exercising their right to development(Article 23); and

· to traditional medicines and health practices(Article 24).

Part VI(Articles 25-30) addresses rights connected with the distinctive relationship of indigenous peoples with their lands, waters and other resources. There is recognition of rights of indigenous peoples:

· to own, develop, control and use the lands, territories, watersand other resourcesthey have traditionally occupied or otherwise used (Article 26);

· to restitution of, or just and fair compensationfor, lands, territories and resources confiscated or used without consent (Article 27);

· to the conservation and protectionof the total environment and productive capacity of their lands, territories and resources (Article 28);

· to the ownership, control and protection of their intellectual and cultural property(Article 29); and

· to require that States obtain their free and informed consentprior to the approval of projects affecting their lands, territories or other resources, particularly in connection with the exploitation of mineral and water resources(Article 30).

Part VII(Articles 31-36) contains rights relevant to the exercise of self-determination through forms of autonomy and self-government. These include rights of indigenous peoples:

· to autonomy or self-governmentin matters relating to their internal and local affairs (Article 31);

· to determine their own citizenship(Article 32);

· to develop and maintain their institutional structuresand juridical customs and traditions (Article 33);

· to determine the responsibilities of individualsto their communities (Article 34);

· to maintain and develop relations and co-operation with other peoplesacross borders (Article 35); and

· to recognition and enforcement of treaties, agreements and other constructive arrangements concluded with State or their successors (Article 36).

5. Commission on Human Rights Working Group on the Draft Declaration (CHRWG)

In August 1994, the Sub-Commissionadopted the text of the Draft Declaration transmitted by the WGIP and decided to submit it to the Commission on Human Rights(CHR) at the fifty-first session of that body in 1995. On 3 March 1995 the CHR decided to establish an open-ended inter-sessional working group, the Commission on Human Rights Inter-sessional Working Group (CHRWG). At the first session, in 1995, the representative of the Grand Council of the Crees stated:

The Draft Declaration is perhaps the most representative document that the United Nations has ever produced, representative in the sense that its normative statements reflect in a more than token way, the experience, perspectives, and contributions of indigenous peoples. In a word, it is a document that was produced in a decade-long spirit of equal dialogue and mutual recognition ... [T]he Working Group should approach the Draft Declaration before it on the basis of a high presumption of validity of its provisions.

In the CHRWG few States delegations were initially prepared to accept all articles of the Declaration as drafted. Indigenous delegations adopted a number of strategies in defence of the existing text. It was frequently stated that the Draft Declaration does not create special rights, rather ensures the enjoyment by indigenous peoples of equal rights.

6. The Human Rights Council adopts the Declaration on the Rights of Indigenous Peoples

On 29 June 2006, the Human Rights Council, the successor to the Commission on Human Rights, adopted the United Nations Declaration on the Rights of Indigenous Peoples at its first session.

Whilst the proposed Declaration contained changes to the text of the WGIP’s Draft Declaration, the Indigenous caucus considered such changes to be acceptable, and lobbied hard in the Council for its adoption.

The Council also recommendedto the General Assembly that it adopt the following draft resolution:

The General Assembly,

Taking noteof Human Rights Council resolution 2006/2 of 29 June 2006, in which the Council adopted the text of the United Nations Declaration on the Rights of Indigenous Peoples,

1. Expresses its appreciationto the Council for the adoption of the United Nations Declaration on the Rights of Indigenous Peoples;

2. Adoptsthe Declaration as contained in the annex to Council resolution 2006/2 of 29 June 2006.

In the Human Rights Council, the Declarationwasadopted by a recorded vote of 30 votes to 2, with 12 abstentions:

In favour: Azerbaijan, Brazil, Cameroon, China, Cuba, Czech Republic, Ecuador, Finland, France, Germany, Guatemala, India, Indonesia, Japan, Malaysia, Mauritius, Mexico, Netherlands, Pakistan, Peru, Poland, Republic of Korea, Romania, Saudi Arabia, South Africa, Sri Lanka, Switzerland, United Kingdom of Great Britain and Northern Ireland, Uruguay, Zambia

Against: Canada, Russian Federation

Abstaining: Algeria, Argentina, Bahrain, Bangladesh, Ghana, Jordan, Morocco, Nigeria, the Philippines, Senegal, Tunisia, Ukraine.

7. The General Assembly adopts the Declaration on the Rights of Indigenous Peoples

In the second half of 2006, in the General Assembly of the United Nations, it emerged that some African States had difficulties with the text of the Declaration on the Rights of Indigenous Peoples, and were not prepared to accept the recommendation of by the Human Rights Council for its adoption. Namibia presented an amending resolution, which called for the vote on the Declaration to be deferred to allow more consideration.

On 28 November 2006, at the 61st session of the United Nations General Assembly, the Third Committee of the General Assembly adopted amendments proposed by Namibia, on behalf of the Group of African States (A/C.3/61/L.57/Rev.1) to the draft resolution on the Declaration on the Rights of Indigenous Peoples (L.18/Rev.1) by a vote of 82 in favour, 67 against and 25 abstentions.

By adopting the amendments, the Third Committee decided to defer consideration and action on the Declarationto allow time for further consultations.

Between November 2006 and September 2007, Indigenous peoples and States supporting the Declaration engaged in intense dialogue with African States in an attempt to clarify doubts, and promote the adoption of the Declaration. In early September 2007, an agreement was reached between the co-sponsors of the Declaration(Belgium, Bolivia, Costa Rica, Cuba, Denmark, Dominican Republic, Ecuador, Estonia, Finland, Germany, Greece, Guatemala, Hungary, Latvia, Nicaragua, Peru, Portugal, Slovenia and Spain), and the African Group of States on nine amendments to the text, as adopted by the Human Rights Council in June 2006. This agreement, and the amended text, formed the basis for the draft resolution on adoption of the Declaration.

On 13 September 2007, by an overwhelming majority of 143 votes in favour, only 4 negative votes cast (Canada, Australia, New Zealand, United States) and 11 abstentions, the General Assembly adopted the Declaration on the Rights of Indigenous Peoples (DRIP). Australia endorsed the Declaration in 2009, and Canada and the United States did the same in 2010.

The text of the Declaration adopted by the General Assembly is not identical to the version adopted by the Human Rights Council in June 2006. However, like the versions adopted by the WGIP, Sub-Commission and CHRWG, it contains detailed provisions dealing with the rights of indigenous peoples in areas such as self-determination, culture and language, education, health, housing, employment, land and resources, environment and development, intellectual and cultural property, indigenous law and treaties and agreements with governments.

Les Malezer, Chair of the International Indigenous Peoples' Caucus, welcomed the adoption of the Declaration in a statement to the General Assembly:

The Declaration does not represent solely the viewpoint of the United Nations, nor does it represent solely the viewpoint of the Indigenous Peoples. It is a Declaration which combines our views and interests and which sets the framework for the future. It is a tool for peace and justice, based upon mutual recognition and mutual respect. …

We emphasise once again that the Declaration on the Rights of Indigenous Peoples contains no new provisions of human rights. It affirms many rights already contained in international human rights treaties, but rights which have been denied to the Indigenous Peoples.

As Indigenous Peoples we now see a guarantee that our rights to self determination, to our lands and territories, to our cultural identities, to our own representation and to our values and beliefs will be respected at the international level. The Declaration is a framework for States to link and integrate with the Indigenous Peoples, to initiate new and positive relations but this time without exclusion, without discrimination and without exploitation. These rights in the Declaration are already recognised in international law, but they are rights which have been denied to Indigenous Peoples everywhere. They are rights which are seen by Indigenous Peoples as essential to our successful survival, dignity and well-being, and to maintain our strong cultural and spiritual relationship with mother earth and nature.

After its adoption by the UN General Assembly, the Declaration constitutes a non-binding declaration. In order for a catalogue of indigenous rights to become legally binding upon States, it will be necessary to commence work on the drafting of an international convention or treaty.

However, whilst the Declaration will be an aspirational document without obligations of direct implementation, it will contribute to a growing body of customary international lawin the area of Indigenous peoples’ rights. It could also provide a solid moral frameworkfor Indigenous peoples’ rights, a powerfultool in changing attitudes, a focus for dialogue, a basis for mobilising resourcesand for increasing the role of Indigenous peoples in the UNsystem.

At the national level, the Declaration could have an impact on debateabout Indigenous issues and bring about change in legislation and policy.

8. Permanent Forum on Indigenous Issues (PFII)

In April 2000, the Commission on Human Rights adopted a resolution to establish the Permanent Forum on Indigenous Issues during the International Decade of the World's Indigenous Peoples. The first session of the Permanent Forum was held at UN Headquarters in May 2002. It is considered a unique organ within the UN system:

· It is a high-level body, established at the same level as the Commission on Human Rights.

· It is the only body within the UN system to deal solely with Indigenous issues. It covers not only human rights but also has a holistic approach to education, culture, the environment and health.

· Through the Forum, Indigenous peoples have become members of a UN body and will help set the Forum’s agenda and determine its outcomes. This is unprecedented within the UN system.

The Permanent Forum is an advisory body to ECOSOC with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights.According to its mandate, the Permanent Forumwill:

• provide expert advice and recommendations on indigenous issues to ECOSOC Council, as well as to programmes, funds and agencies of the United Nations, through ECOSOC;
• raise awareness and promote the integration and coordination of activities related to indigenous issues within the UN system; and
• prepare and disseminate information on indigenous issues

The Permanent Forum is composed of sixteen experts. Eight members are nominated by governments and elected by ECOSOC; eight are appointed by the President of ECOSOC following formal consultations with governments which, in turn, have discussed prospective nominees with indigenous organizations. The selection process is based on principles of fair representation, the diversity and geographical distribution of indigenous peoples, transparency and equal opportunity for all Indigenous peoples.

The distribution of governmental seats is based on the five UN regional groups, with three additional seats rotating among the regions. This term, the three regional groups of Latin America and the Caribbean, Western Europe and Asia each have two seats. Indigenous people have nominatedtheir candidateson the basis of 7 geo-cultural regionsthat they have devised to more accurately reflect cultural regions, with one rotating seat.

The sixteen members serve in their personal capacitiesas independent experts on indigenous issues. They are appointed for a period of three years with the possibility of re-election or reappointment for another 3-year period. Decisions are made by consensusof the sixteen members.

Sessions of the Forum are held every May at the UN in New York and have covered a wide range of themes since 2002. In 2011, the Forum held a review session and submitted a recommendation to ECOSOC that an international expert group meeting be held on the theme, “Combating violence against indigenous women and girls”, with reference to article 22 of the DRIP. UN Secretary General Ban Ki-Moon noted that,

This Forum can play a dynamic role in changing this deplorable situation and helping indigenous peoples around the world achieve the self-determination they deserve. Your success can build momentum towards the World Conference on Indigenous Peoples planned for 2014.

Organisations of Indigenous peoples may participate as observersin the meetings of the Permanent Forum.

The Secretariat of the Permanent Forum for Indigenous Issues is at United Nations, 2 UN Plaza, Room DC2-1772, New York, NY 10017, Tel: (1) 212-963-0098.

Email: indigenouspermanentforum@un.org

9. Special Rapporteur on the situation of the human rights and fundamental freedoms of Indigenous people

The Forum appoints a Special Rapporteur to examine ways and means of overcoming obstacles to the protection of indigenous peoples’ rights. In March 2008, Professor James Anayawas appointed Special Rapporteur. His role is to execute thematic research, visit countries and communicate with governments. He has a mandate to:

• gather, request, receive and exchange information and communicationsfrom all relevant sources, including Governments, indigenous people themselves and their communities and organizations, on violations of their human rights and fundamental freedoms;
• formulate recommendations and proposals on appropriate measures and activitiesto prevent and remedy violations of the human rights and fundamental freedoms of indigenous people; and
• work in close relation with other special rapporteurs, special representatives, working groups and independent expertsof the Commission on Human Rights and of the Sub-Commission on the Promotion and Protection of Human Rights.

The Special Rapporteur submits an annual report including reports from countries visited, and occasional special reports. In 2008, the annual report examined the DRIP, and analysed its role in the context of other international instruments concerned with Indigenous peoples. It stressed the importance of civil engagement on indigenous issues.

In 2009, the Special Rapporteur coordinated with other UN bodies and offered an analysis of the duty of States to consult with Indigenous peoples regarding matters pertinent to them. He urged for more consultation, noting that “lack of adequate consultation leads to conflictive situations”.

The 2010report addressed corporate responsibilitywith respect to indigenous rights, including international standards and due diligence. The recommendations included more consultation, proper impact studies and benefit sharing and more clarity regarding corporate responsibility.

At the May 2011session of the UNPFII, the Special Rapporteur elaborated on this theme, expressing his hope “to contribute to a set of guidelines to help reverse historical trends and further the exercise of indigenous peoples’ right to self-determination in the face of initiatives to extract natural resources from their lands”.

A full list of reports is available at

http://www2.ohchr.org/english/issues/indigenous/rapporteur/annualreports.htm.

Country reports are available at

http://www2.ohchr.org/english/issues/indigenous/rapporteur/countryreports.htm.

The Special Rapporteur also receives communications providing information about allegations of violations of the human rights and fundamental freedoms of indigenous peoples. He analyses such information and decides whether or not to take action.

In the case of violations of the rights of individuals, full information should include: full name of the victim, clear name of the community at risk when applicable, age, place of residence or origin, profession, marital status etc and the precise circumstances of the incident such as date, place and a description of how the event occurred.

When the victims of alleged violations are communities or members of distinct collectivities (tribal communities, families etc), full information should include social and cultural context, references to public policies and specific circumstances under which the alleged violation occurred, as well as the characteristics of the group and when, if applicable, the nature of the human rights gap and the demands of the people concerned.

The main type of communications sent by the Special Rapporteur is "urgent appeals" in cases of imminent dangers of violations of the human rights of individuals, or entire indigenous communities. He also transmits "allegations letters" to Governments on cases of less urgent character.

As a general rule, both urgent appeals and letters of allegation remain confidential until published in the annual reportof the Special Rapporteur to the Commission on Human Rights. A summary of such communications and the replies received from the concerned State are formally included in the Special Rapporteur's annual report to the Commission.

The mandate of the Special Rapporteur is serviced by the Office of the United Nations High Commissioner for Human Rights in Geneva:

OHCHR, United Nations, 1211 Geneva 10, Switzerland. Contact Person: Pablo Espiniella, Human Rights Officer: Tel. (41 22) 917 94 13 Fax (41 22) 917-90 10; Email: indigenous@ohchr.orgWebsite: www.unhchr.ch/indigenous/rapporteur.htm

10. The International Labour Organisation (ILO) and Indigenous peoples

The International Labour Organisation (ILO) was the first among international organisations to develop standards for the protection of Indigenous peoples. Early instruments include:

· Forced Labour Convention 1930 (No 29)

· Recruiting of Indigenous Workers Convention 1936

· Contracts of Employment (Indigenous Workers) Convention 1939 (No 64)

· Penal Sanctions (Indigenous Workers) Convention 1939 (No 65)

In 1957 ILO Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (No 107)was adopted. ILO Convention No 107 reflects an integrationistphilosophywidely held in the 1950s and it uses protective and integrationist language. Growing scepticism about this orientation resulted in a virtual halt in ratification, and activity of Indigenous peoples at the UN increased pressure for its revision.

11. ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No 169)

ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No 169)was adopted by the ILO’s General Conference in June 1989, and entered into force on 5 September 1991. Article 7(1) expresses that indigenous peoples should have the right,

to decide their own priorities for the process of developmentas it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, andto exercise control, to the extent possible over their economic, social and cultural development. In addition, they shallparticipate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.

States parties are required to report on measures taken to implement the convention and problems encountered in their implementation. As of 24 July 2011, there are 22 States parties.

In implementing the Convention, States are to consultwith Indigenous peoples on issues of development through appropriate procedures, in particular through their representative institutions, with the objective of achieving agreement or consent (Article 6(1)).

Part I also contains provisions relating to customs and institutions, the recognition of methods customarily practised for dealing with offences, and penalties and procedural safeguards in legal proceedings (Articles 8-12).

Part II enumerates rights in relation toland and resource ownership. Article 14(1) provides that the “rights of ownership and possession of the peoples concerned over the lands they occupy shall be recognised”.Theeffective protection of rights of ownership and possession are to be guaranteed (Article 14(2)), andadequate procedures established to resolve land claims (Article 14(3)). The rights to the natural resources pertaining to these lands are to be specially safeguarded (Article 15(1)). Where the State retains ownership of mineral or subsurface resources, procedures of consultationare to be established to ascertain to what degree the interests of the peoples concerned would be prejudiced. Where programs of exploration or exploitation are undertaken, the peoples concerned shall participate wherever possible in the benefits and receive fair compensationfor any damage (Article 15(2)).

Subsequent Parts of ILO Convention No 169 deal with:

· recruitment and conditions of employment (Article 20)

· vocational training, handicrafts and rural industries (Articles 21-23)

· social security and health (Articles 24-25)

· education and means of communication (Articles 26-31) and

· contacts and co-operation across borders (Article 32).

Indigenous communities are encouraged to participate in the supervisionof ILO Conventions by sending information (e.g. laws or court decisions) directly to the ILO and by strengthening their alliances with workers’ organisations.

The ILO has a supervisory function in the implementation of ILO Convention 107 and Convention 169. It also provides technical cooperation and assistance to Indigenous peoples in ILO member states. A dedicated website on Indigenous peoples can be found at: http://www.ilo.org/indigenous/lang--en/index.htm.

12. The History of Self-Determination

Following the Second World War, the principle of self-determination of nationalitiesemerged as the basis for the territorial reconstruction of Europe at the conclusion of the First World War. At the Peace Conference of Versaillesit proved impossible to make territorial adjustments in complete conformity with the principle of self-determination.

A reference to self-determination contained in President Wilson's draft of the Covenant of the League of Nations was omitted. Instead, the Peace Conference adopted a two-part approach:

· territorial adjustmentswere made with an eye to aspirations for national self-determination and through the use of plebiscites;

· the Conference decided upon the introduction of a system for the protection of minorities.

Thus, historicallythe rights of peoples to self-determinationand minority rights were not seen as mutually exclusive. The concept of self-determination embraced not only thecreation of independent states, but also minority rights or internal self-determinationin order to provide a measure of autonomy within existing states.

The Charter of the United Nations (1945)contains two references to self-determination:

· Article 1 lists as a purpose of the UN the development of “friendly relations among nations based on respect for the principle of equal rightsand self-determinationof peoples'';

· Article55refers to “peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples” in connection with economic and social co-operation.

It remained unclear from these Articles what and who precisely the content and subjects of self-determination were. On that question, the drafting committee emphasised that the principles should be universal, and that they implied a “right of self-governmentof peoples and not the right to secession”.

At the time of drafting the Charter of the United Nations, then, there was no general commitment to decolonisation. Rather, self-government and independence were envisaged only under the International Trusteeship System,established under Chapter XIIof the UN Charter. Trust territorieswere those detached from enemy states after the Second World War.

In the early years of the UN, 11 trust territorieswere placed under the Trusteeship System. Today, all 11 are independent or have voluntarily associated themselves with a State.

Member States responsible for the administration of non-self-governing territoriessimply accepted as“a sacred trustthe obligation to promote to the utmost ... the well-being of the inhabitants of these territories”.

To this end, they were “to develop self-government, to take due account of the political aspirations of the peoples... to assist them in the progressive development of their free political institutions” and to transmit regularly to the Secretary-General informationregarding conditions in the territories (Chapter XI, Article 73).

The reporting obligationin Article 73 removed conditions in non-self-governing territories from those matters essentially within the domestic jurisdiction of states (Article 2 para 7). This provided the framework for the subsequent recognition of the right to self-determination of peoples in all colonial territories.

In 1946, eight member States – Australia, Belgium, Denmark, France, the Netherlands, New Zealand, the United Kingdom and the United States – identified72 territoriesunder their administration which were non-self-governing. Of these, 8 became independent before 1959.

Transmission of information by the administering power was discontinued for 21 territories. In the cases of Puerto Rico, Greenland, Alaska and Hawaii the cessation of information was accepted by the General Assembly.

Resolution 1514: Declaration in the Granting of Independence to Colonial Countries and Peoples (1960)

In relation to decolonisation, the UN developed a body of practice in which full external self-determination or independencewas the preferred outcomeof self-determination.

This process was formalised in the adoption by the General Assembly in December 1960of two resolutions, 1514 (XV) and 1541 (XV).

Resolution 1514 (XV) “Declaration in the Granting of Independence to Colonial Countries and Peoples”proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations, and declares that:

All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Resolution 1514 (XV) expresses a clear preference for independenceas the outcome of an exercise of self-determination.

According to Resolution 1541 (XV),a non-self-governing territory reaches a full measure of self-government in the sense of Chapter XI of the Charter through:

· emergence as a sovereign independent state;

· free association; or

· integration.

In 1963, the General Assembly approved a revised list of 64 territories to which Resolution 1514 applied. The list was subsequently expanded, including New Caledonia in 1986. From 1960 to 1990, 53 territories attained independence.

International Human Rights Covenants (1966)

Articles 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted in 1996, affirm the right of all peoples to self-determination:

All 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.

General Assembly Resolution 2625: Friendly Relations Declaration (1970)

In 1970, the UN General Assembly adopted resolution 2625 (XXV), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (“FriendlyRelationsDeclaration”).

The Friendly Relations Declarationseeks to clarify the relationship between the principles of self-determination and territorial integrity and national unity. Paragraph 7 of the section on the “Principle of equal rights and self-determination of peoples” provides:

Nothing in the foregoing paragraphs shall be interpreted as authorizing or encouraging any action which could dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent Statesconducting themselves in compliance with the principles of equal rights and self-determination of peoples ... [a]nd thus possessed of a government representing the whole people belonging to the territory.

The Friendly Relations Declaration also reflects increasing acceptance of the idea that self-determination can embrace a range of optionsother than independent statehood. It provides that “free association' with an independent state or

any other political status freely determined by a people constitute modes of implementing the right of self-determination of that people.

Post-colonial self-determination

In recent State practice, the contours of an emerging post-colonial self-determination regime are apparent. In this regime self-determination is a technique or method, a range of possible outcomes, rather than an absolute right to full external self-determination in the form of complete independence. The basic requirement is a procedure, a freely-made choice.

Possible outcomes include associated statehood, internationalised territories, federal schemes, autonomy, ethnic, linguistic and religious minority rights to ensure the continued integrity of a people, guarantees of non-discrimination and integration.

In the post-colonial context, independence is regarded as a remedy for continued abuse of human rights and denial of representative political structures.

13. Indigenous peoples and the principle of self-determination

From the establishment of the WGIP in 1982, indigenous representatives insisted that thesuccess of the UN’s activities in the area of Indigenous peoples’ rights would depend on the recognition of their inherent right of self-determination. This right is said to arise from their status as self-governing peoples prior to their subjection to processes of colonisation in their own territories.

Indigenous peoples point out that their dispossessiongenerally occurred with force and without theirconsent.With few exceptions, they were not part of State-building. They were denied opportunities to participate in designing the constitutional order of the States into which they were incorporated. In asserting their right of self-determination, they are seeking to renegotiate their political statusand to insist that they provide their genuine consentto the terms of future relationships with existing States.

In many countries fundamental processes of constitutional review and reallocation of powerare taking place. For Indigenous peoples these processes of "belated State-building" are akin todecolonization, based upon the recognition of their unique status as first peoples and not simply as racial or cultural minorities in a larger society.

Indigenous peoples argue that pursuant to article 1 of the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, the right of self-determination is a right of “all peoples."They say that any qualification on the right of self-determination would mean that the international community regards the rights of Indigenous peoples as inferior to those of other peoples.

For example, at the WGIP in 1990 a statement made by Indigenous peoples, “Recommendations concerning the August 1989 Draft Universal Declaration on the Rights of Indigenous Peoples, 21 June 1990” provided that:

The right of indigenous peoples to self-determination is equal to the right of non-indigenous peoples to self-determination. We should resist efforts to re-define or to dilute for indigenous peoples a right that has already been recognized for all others. The declaration must carefully avoid establishing a category of second-class rightsfor indigenous peoples.

At the WGIP in 1993 Chief Ted Moses, Ambassador of the Grand Council of the Crees, stated on behalf of the North American Region,

The indigenous peoples ask to be accorded the same rights which the United Nations accords to the other peoples of the world. We ask for no more and no less than this.

The same year, the Indigenous Delegates on Self-Determination stressed the importance of self-determination:

We believe that the working group should demonstrate consistency and objectivity on this issue because the right of self-determination is the heart and soul of the declaration. We will not consent to any language which limits or curtails the right of self-determination.

At the WGIP in 1994, Lois O'Donoghue, Chairperson of the Aboriginal and Torres Strait Islander Commission stated:

The call for self-determination in the Declaration on the Rights of Indigenous Peoples is not a new or different right that applies to us as indigenous peoples. The emphasis in the Declaration highlights the historical fact that that this right has been denied to us.

At the first session of the CHRWG in 1995, the Saami Council stated:

[T]he right of self-determination for indigenous peoples is essential, not because this right is a right of indigenous only, but because it is a right of all peoples.

In an open letter to a US Congress committee in 2005, the National Congress of American Indians wrote,

The purpose of self-determination is not simply for its own sake. The purpose is to enable a unique group of indigenous people to maintain their culture, language and identity. … Our country will be much the poorer if our indigenous cultures are forcibly homogenized.

Dr. Lian H. Sakhong, a key figure in Burmese opposition, expressed at the 2004Conference on Indo-Burma Relations that “the ultimate goal of our struggle is to establish a genuine Federal Union of Burma, which will guarantee democratic rightsfor all citizens, political equality for all nationalities and the rights of self-determination for all member states of the Union”. In 2009, he explained in an interview that

the root course of political crisis in Burma is the constitution: a constitutional crisisthat is rooted in the problem of the denial of the rights of ethnic nationalities who joined the Union of Burma as equal partners in 1947 at Panglong.

14. States and the principle of Indigenous peoples’ self-determination

The sessions of the CHRWG saw an increasing number of State delegations supporting language of self-determination. For example, Canadaannounced in 1996 that it accepted a “right of self-determination for Indigenous peoples which respects the political, constitutional and territorial integrityof democratic states”. New Zealandalso stated that it “could accept the inclusion in the draft Declaration of a right of self-determination for indigenous peoples”, subject to the draft being “consistent with domestic understanding of the relationship between Maori and the Crown”.

When the DRIP was adopted in 2007, it included the following provisions relating to self-determination:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 46

Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

[1]UN Doc E/CN 4/Sub 2/1992/28.