Author : Swapan Deb Barma
Indigenous peoples are the inheritors and practitioners of unique cultures and ways of relating to other people and to the environment. Indigenous peoples have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live.
Currently there are about 300 million Indigenous Peoples live in over 70 countries. They have come together to seek help from the United Nation to put an end to their poverty as well as to social discrimination against them decisive steps. Among these is a series of programmes under the “Declaration of the International decade of the World’s Indigenous Peoples”, aimed at strengthening international cooperation on redressal of crises in the areas of human rights, environment, development, education and health.
The adoption of the Declaration on the Rights of Indigenous Peoples by the United Nations marks a momentous and historic occasion for both Indigenous Peoples and the United Nations. One quarter of a century ago the United Nations agreed that the situation of indigenous peoples around the world was so desperate and consistently exploited, that it warranted international attention. Within a few years of brief examination and assessment, the United Nations decided that a human rights standard on the rights of indigenous peoples was required. Simultaneously, the indigenous peoples of the world were uniting, because of capacity to communicate to each other, but also out of necessity to achieve an international voice.
Under this I shall discuss UDHR, ICCPR, ICESCR, racial discrimination, Declaration on the Rights of Indigenous Peoples and finally give concluding on the findings.
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
The UN’s first major achievement in the field of human rights was the General Assembly’s adoption of the Universal Declaration of Human Rights in 1948. Members of the UN disputed the wording of the Universal Declaration at the time, but the declaration was finally adopted by consensus. The Universal Declaration is an eloquent and far-reaching description of the rights of all human beings. In addition, it gives individuals a place in international law that they had never had before. Many other human rights instruments are based on the Universal Declaration.
Some of the fundamental rights cited in the Declaration are:
– the right to equality and freedom from discrimination
– the right to life, liberty and personal security
– freedom from torture and degrading treatment
– the right to equality before the law
– the right to a fair trial
– the right to privacy
– freedom of belief and religion
– freedom of opinion
– freedom of peaceful assembly and association
– the right to participate in government
– the right to social security
– the right to work
– the right to adequate standards of living
– the right to education
This historical document declares that all human beings are born with equal and inalienable rights and fundamental freedoms. The United Nations is committed to upholding, promoting and protecting the human rights of every individual. This commitment stems from the United Nations Charter, which reaffirms the faith of the peoples of the world in fundamental human rights and in the dignity and worth of the human person. In the Universal Declaration of Human Rights, the United Nations has stated in clear and simple terms the rights which belong equally to every person. These rights belong to you. They are your rights. familiarize yourself with them. Help to promote and defend them for yourself as well as for your fellow human beings.
Following the adoption of the Universal Declaration of Human Rights, the UN drafted two treaties, called covenants, which contain provisions of the Universal Declaration and made them legally binding on countries that agreed to become parties to the covenants. The two covenants are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). They were adopted by the General Assembly in 1966, but did not enter into force until 1976, after a sufficient number of countries had agreed to become party to them. ICCPR is known as first-generation human rights deal essentially with liberty and participation in participation in political life. They are fundamentally civil and political in nature, and serve to protect the individual from excesses of the state derived from the Universal Declaration of Human Rights (UDHR, 1948) and the International Covenant on Civil and Political Rights (ICCPR, 1966). Article 27 of the International Covenant on Civil and Political Rights affirms that persons belonging to ethnic, religious or linguistic minorities shall not be denied the rights to use their own language. But, as was pointed out earlier, the indigenous organisations the world over refuse to be categorised among “ethnic minorities”.
In accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,
Article 27 of International covenant on civil and political rights, 1966, recognizes the rights of minorities, which is more relevant for indigenous peoples than foregoing two instruments. The Article 27 runs as under:
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 practise their own religion, or to use their own language.
It would appear that this Article does not constitute on effective, basis for a system of protection of minorities rights. In the first place, by introducing the text with the phrase “In those states in which ……minorities exist,”. Article 27 leaves the entire questions of definition wide open. The states may deny that they have minorities in their respective states. Who and under what circumstances, is to be decided whether minorities exist within a certain state? Secondly, the Article clearly refers to individual rights (“persons belonging to such minorities …..”) and not collective rights. Thirdly, the rights of minorities are protected negatively (“person belonging to such minorities shall not be denied…”), and the text does not impose on State any active obligation to enchance the minority rights. Beside this, the Article 27 is related to ethnic minorities’ right and there is no mention of the Indigenous Peoples. In fact, indigenous peoples refuse to be categorised themselves as “ethnic minorities”, they themselves as “peoples”. For these reasons indigenous peoples consider that this Article is a very weak statement of cultural rights. However, it should be remembered that Article 27 is a step forward in the right direction in the transition from individual to collective rights in the Work of UN.
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)
Second-generation human rights are related to equality are fundamentally social, economic, in spite of recognition those recognised under this convention separate rights has been declared for the indigenous peoples.
This declaration is on Indigenous Peoples and Individual which rrecognizes the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,
The declaration is also Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppression, Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world, Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the The Universal declaration of Human rights, 1948, contains the express reference to the cultural rights. This declaration recognizes the “right to culture” in several places, as when it explicitly states that “every one, as member of society”, is entitled to cultural rights (Art.22) “everyone has the right to freely participate in the cultural ties of the community” (Art. 27). Furthermore, Article 15 of the International covenant on Economic, social and cultural rights, 1966, recognizes the right to everyone to take part in cultural life. But both the Declaration and Covenant refer to “national” cultures and not the indigenous cultures.
RACISM AGAINST INDIGENOUS PEOPLES
The efforts by the international community to pursue the realization of Human Rights and fundamental freedoms for all regardless of race, gender, language and religion have proven to be inadequate. Today racial discrimination, ethnic conflicts and widespread violence persist in many parts of the world.
Millions of human beings continue to encounter discrimination solely due to the colour of their skin or other factors that indicate ethnic difference.
Indigenous peoples are just one group among the many discriminated against. Ethnic minorities, migrants, and asylum seekers are others who are not met with the respect that should be fundamental to all human beings. There is persistent and in some cases even increasing discrimination against these groups
In 1963 the UN General Assembly adopted the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), which also has great importance for indigenous peoples. All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. Indigenous People’s organisations and others have the possibility to submit so-called shadow reports and present their views to the Committee members before the state reports are officially examined. It is an autonomous body comprised of 18 experts with recognised competencies in the field of human rights. The experts are elected in their personal capacity, not as representatives of their Governments.
In order to remove discrimination against Indigenous Peoples and raise public awareness of their plight, the UN General Assembly on 18 December 1990 adopted resolution 45/64 and proclaimed the year 1993 as the International Year of the World’s Indigenous Peoples.
DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES
The declaration was accepted with an overwhelming majority of 143 votes in favour, only 4 negative votes cast (Canada, Australia, New Zealand, United States) and 11 abstentions, the United Nations General Assembly (GA) adopted the Declaration on the Rights of Indigenous Peoples on September 13, 2007. The Declaration has been negotiated through more than 20 years between nation-states and Indigenous Peoples. Les Malezer, Chair of the International Indigenous Peoples’ Caucus. This is the most comprehensive statement of the rights of indigenous peoples ever developed, giving prominence to collective rights to a degree unprecedented in international human rights law. The adoption of this instrument is the clearest indication yet that the international community is committing itself to the protection of the individual and collective rights of indigenous peoples.
The declaration lays out the fundamental rights and freedoms of the world’s Indigenous Peoples, although it is not legally binding. It was originally opposed by just four countries – the U.S., Canada, Australia and New Zealand. The latter two have since reversed their positions and, in March, Canada announced its intention to change its position. Around the same time, the U.S. also decided to undertake a review of its position .
The Declaration is a culmination of over twenty years of work that began in earnest at the Working Group which began the drafting of the declaration in 1985. The first draft was completed in 1993, and in 1995, the Commission on Human Rights set up its own working group to review the draft adopted by the human rights experts of the Working Group and the Sub-Commission. More than 100 indigenous organizations participated in the Working Group of the Commission annually.
In 1989, Chief Ted Moses, of the Grand Council of the Crees in Canada, was the first indigenous person elected to office at a UN meeting to discuss the effects of racial discrimination on the social and economic situation of indigenous peoples. Since then, increasing numbers of indigenous persons hold office at meetings related to indigenous matters. The problem of Indigenous Peoples is basically human rights problems. The ILO and UNESCO are partners, along with the UN Commission on Human Rights to evolve the meaningful rights of the Indigenous peoples.
As issues such as sustainable development are accorded greater political weight, the international community has also shown greater respect for the special relationship that Indigenous Peoples have with their lands and ancient culture apart from the mainstream, others seek the path of integration into modern society. Beside this, modern human rights are protection. But the promotion and protection of human rights of Indigenous Peoples require a special sensitivity to particular situation as their problems are collective problems.
THREE UNITED NATION BODIES OF SPECIFICALLY DEAL WITH INDIGENOUS ISSUES
THE PERMANENT FORUM
The Permanent Forum was established by the United Nations Economic and Social Council (ECOSOC) resolution 2000/22 on 28 July 2000. In this resolution the UNPFII was given a mandate to “discuss indigenous issues within the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights.”
To substantiate this work, the Permanent Forum was called upon to provide expert advice and recommendations on indigenous issues to the UN system through the Council; raise awareness and promote the integration and coordination of relevant activities within the UN system; and prepare and disseminate information on indigenous issues.
The Permanent Forum is comprised of sixteen independent experts, functioning in their personal capacity, who serve for a term of three years as Members and may be re-elected or re-appointed for one additional term.
Eight of the Members are nominated by governments and eight are nominated directly by indigenous organizations in their regions.
EXPERT MECHANISM ON THE RIGHTS OF INDIGENOUS PEOPLES
Pursuant to Human Rights Council resolution 6/36, the Expert Mechanism on the Rights of Indigenous Peoples composing of five experts, has been established to assist the Human Rights Council in providing thematic expertise on the rights of indigenous peoples.
The Expert Mechanism will provide its thematic expertise in the manner and form requested by the Council. To this end, it will focus mainly on studies and research-based advice. Besides, the Expert Mechanism may also suggest proposals to the Council for its consideration and approval, within the scope of its work as set out by the Council.
Although the Expert Mechanism shall not adopt resolutions or decisions, it should determine its own methods of work. For its first session, it will meet for three days and thereafter for up to five days and these sessions may be a combination of open and private meetings.
In addition, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous and a member of the Permanent Forum on Indigenous Issues shall be invited to attend and contribute to its annual meeting.
SPECIAL RAPPORTEUR ON THE SITUATION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF INDIGENOUS PEOPLE
Indigenous peoples across the world experience the consequences of historical colonization and invasion of their territories, and face discrimination because of their distinct cultures, identities and ways of life. In recent decades, the international community has given special attention to the human rights situations of indigenous peoples, as shown by the adoption of international standards and guidelines, as well as by the establishment of institutions and bodies that specifically target these peoples’ concerns. The rights of indigenous peoples are further promoted by international and regional human rights mechanisms.
In this context, the Commission on Human Rights decided to appoint in 2001 a Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous People, as part of the system of thematic Special Procedures. The Special Rapporteur’s mandate was renewed by the Commission on Human Rights in 2004, and by the Human Rights Council in 2007.
In the fulfilment of his mandate, the Special Rapporteur:
– Promotes good practices, including new laws, government programs, and constructive agreements between indigenous peoples and states, to implement international standards concerning the rights of indigenous peoples
– Reports on the overall human rights situations of indigenous peoples in selected countries ;
– Addresses specific cases of alleged violations of the rights of indigenous peoples through communications with Governments and others;
– Conducts or contributes to thematic studies on topics of special importance regarding the promotion and protection of the rights of indigenous peoples;
The Special Rapporteur undertakes efforts to follow-up on the recommendations included in his or his predecessor’s reports in relation to the foregoing areas of work. Additionally, he reports annually on his activities to the Human Rights Council
Despite international recognition and acceptance of the Universal Declaration of Human Rights, 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 lack of 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 Peoples’ 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.
Now that the Declaration has been adopted by the General Assembly, Indigenous Peoples can reasonably expect that the States will, if they do not already have such a relationship, form a collaborative and cooperative relationship with the representatives of the indigenous peoples to ensure that the rights contained in the Declaration are protected and promoted