Transforming Law and Institution

Indigenous Peoples, the United Nations and Human Rights

Rhiannon Morgan

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317007562
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Intergovernmental Organizations
• Index: Politics & International Relations

In the past thirty or so years, discussions of the status and rights of indigenous peoples have come to the forefront of the United Nations human rights agenda. During this period, indigenous peoples have emerged as legitimate subjects of international law with rights to exist as distinct peoples. At the same time, we have witnessed the establishment of a number of UN fora and mechanisms on indigenous issues, including the UN Permanent Forum on Indigenous Issues, all pointing to the importance that the UN has come to place on the promotion and protection of indigenous peoples' rights. Morgan describes, analyses, and evaluates the efforts of the global indigenous movement to engender changes in UN discourse and international law on indigenous peoples' rights and to bring about certain institutional developments reflective of a heightened international concern. By the same token, focusing on the interaction of the global indigenous movement with the UN system, this book examines the reverse influence, that is, the ways in which interacting with the UN system has influenced the claims, tactical repertoires, and organizational structures of the movement.

Chapter 1

United Nations Engagement with Indigenous Issues

Indigenous peoples’ interests are progressed in part through general, undifferentiated human rights instruments in the human rights canon, which, as Article 1 of the UNDRIP affirms, apply equally to indigenous individuals and peoples as to all other individuals and peoples (United Nations 2007a, Art. 1). These are not the main concern of this book, though the question of the extent to which general human rights instruments can advance indigenous concerns is a relevant one, not least because indigenous advocates have been relatively successful in utilizing such instruments, as highlighted elsewhere (e.g. Thornberry 2002). This notwithstanding, the central focus throughout this book is on UN instruments and initiatives specifically dedicated to the promotion and protection of indigenous peoples’ rights, which have come into being in the last thirty years or so principally as a result of the activities of the global indigenous movement within the UN system. This chapter provides an overview of these developments, beginning with the core human rights instruments concerning indigenous peoples before progressing to further supporting initiatives.

Core Indigenous Rights Instruments

Developments within the ILO: Conventions No. 107 and No. 169

The issue of indigenous rights first arose in the UN in the context of the International Labour Organization (ILO) – a UN specialized agency that predates the UN – and its concern with the exploitation of indigenous labour. An interest of the ILO dating back to the 1920s, during the 1930s the ILO produced a number of instruments protecting indigenous workers before adopting, in 1957, the ILO Convention No.107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO Convention No. 107) and its accompanying Indigenous and Tribal Populations Recommendation No. 104.1 The first comprehensive set of international standards on indigenous rights, ILO Convention No.107 attempts to address the marginalization of indigenous peoples through a range of special protective measures, but overwhelmingly reflects the dominant ‘indigenist’ (Gray 1997, 49) approach of the time in promoting the eventual integration of indigenous peoples into national societies and economies. Article 2 sets forth the main thrust of the Convention, as follows:

1. Governments shall have the primary responsibility for developing co-ordinated and systematic action for the protection of the populations concerned and their progressive integration into the life of their respective countries.

2. Such action shall include measures for:

a) enabling the said populations to benefit on an equal footing from the rights and opportunities which national laws or regulations grant to the other elements of the population;

b) promoting the social, economic and cultural development of these populations and raising their standard of living;

c) creating possibilities of national integration to the exclusion of measures tending towards the artificial assimilation of these populations.

3. The primary objective of all such action shall be the fostering of individual dignity, and the advancement of individual usefulness and initiative.

The protections recognized in ILO Convention No.107 are varied and include the right to both individual and collective ownership of traditional lands (Art. 11), preservation of language (Art. 23), and some degree of protection for indigenous customs and institutions, but special measures are viewed as temporary and ‘not to be used as a means of creating or prolonging a state of segregation’ (ILO 1957, Art. 3.2). The balance between protection and integration is therefore very much biased towards the latter, and in way that is wholly at odds with contemporary norms of indigenous peoples’ rights.

ILO Convention No. 107 is no longer open for ratification, though it remains in force for eighteen countries.2 The ILO has, however, long recognized the fundamental limitations of the Convention; for over a decade, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) responsible for monitoring compliance has interpreted government obligations under the Convention in a way that dispenses with its integrationist and paternalistic elements in favour of more current developments,3 and especially in accordance with the ILO Convention No.169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No.169) of 1989. Accordingly, the live status of the Convention in the aforementioned eighteen states does not create an anomaly in international law and implementation.

The revision of ILO Convention No. 107 and its replacement with ILO Convention No. 169 was brought about in the context of growing indigenous mobilization within the UN system and reflects a responsiveness to indigenous peoples’ demands for recognition of their collective rights to exist as distinct communities and peoples. ILO Convention No.169 formally rejects the integrationist and assimilationist intentions of its predecessor, which were described at the 1986 Meeting of Experts convened to discuss revision of the Convention as ‘destructive in the modern world … in practice it [integration] had become a concept which meant the extinction of ways of life which are different from that of dominant society’ (cited in Anaya 1996, 47). Its basic orientation is reflected in the preamble, which recognizes the aspirations of indigenous peoples ‘to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live’ (ILO 1989, preamble). Its provisions establish a wide range of rights, including individual rights of non-discrimination (Art. 3), personal security (Art. 4), and political and civic participation in national society (Art. 4), and collective rights to cultural, institutional, and linguistic integrity (Arts. 8, 9 and 28) and ownership and possession of lands and resources (Arts. 14, 15, 16, 17 and 18).4

Unlike ILO Convention No.107, ILO Convention No.169 uses the term ‘peoples’ rather than ‘populations’ to denote the beneficiaries of the Convention. This represented a significant breakthrough insofar as the former is associated with the right to self-determination in international law. Its inclusion, however, was strongly resisted by some states, resulting in an eventual compromise in the form of a clarification, as follows (Art 1.3):

The use of the term ‘peoples’ in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.

The qualifying language of Article 1.3 disappointed indigenous advocates, who also expressed dissatisfaction with the lack of effective participation of indigenous peoples in the 1988 General Conference. Only international NGOs were allowed to participate, and these were permitted to address the conference on a limited basis only (Berman 1988, 52). Nonetheless, as Anaya (1996, 48–49) notes, even the qualified use of the term ‘peoples’ represented significant progress in implying ‘a greater and more positive recognition of group identity and corresponding attributes of community’, while a number of the Convention’s provisions go a significant way to protecting aspects of the right of indigenous peoples to self-determination. Nor is it the case that the qualifying language should be seen as having been intended to limit the meaning of the term; as is evident from the legislative history and several statements since, the ILO considered the issue of the right to self-determination of indigenous peoples to be a political rather than a labour issue, and therefore best left to procedures within the UN.

UN Declaration on the Rights of Indigenous Peoples

Progression through the UN System

Within the UN proper, the earliest significant engagement with indigenous issues dates to 1971, when the UN Economic and Social Council (ECOSOC) requested the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities (Sub-Commission) to undertake a study on discrimination experienced by indigenous peoples. The study was allotted to Special Rapporteur José R. Martínez Cobo of Ecuador and took thirteen years to complete.5 It was issued in instalments between 1981 and 1983 and published in consolidated form under the title Study on the Problem of Discrimination Against Indigenous Populations (United Nations 1986a). Containing 22 chapters covering diverse areas of concern for indigenous peoples including land, political rights, language, health, and culture, the study makes a number of conclusions and proposals, and offers the noteworthy view that ‘self-determination, in its many forms, must be recognized as the basic precondition for the enjoyment by indigenous peoples of their fundamental rights and the determination of their own future’ (United Nations 1983, para. 580). A major consideration in the process of preparing the report was that it take into account the views and aspirations of indigenous peoples, which, by the late 1970s, were increasingly being voiced in international fora.

In 1982, urged on by the findings of the Cobo report, as well as the growing advocacy of indigenous and non-indigenous NGOs, ECOSOC authorized the establishment of the UN Working Group on Indigenous Populations (WGIP) as a sub-organ of the Sub-Commission.6 Comprised of five rotating members of the Sub-Commission, who are individuals working in the capacity of independent human rights experts rather than state representatives, the WGIP was charged with a twofold mandate: i) to review developments concerning the promotion and protection of the human rights and fundamental freedoms of indigenous peoples; and ii) to formulate standards that could guide relations between indigenous peoples and states. In 1985, the latter task was given greater focus with the Sub-Commission’s approval of the WGIP’s decision to draft a UN declaration on the rights of indigenous peoples.

The WGIP’s original intention was to complete work on a draft declaration within a few years, allowing enough time for a declaration to progress to the General Assembly for adoption in 1993. In the event, the WGIP did not agree on a final text until 1993. Critical to the overall task was the esteemed Chairperson-Rapporteur of the WGIP from 1984 to 2000, Erica-Irene A. Daes, who steered the working group through the drafting process. Also regarded as the principal drafter, Daes produced a first set of preambular paragraphs and principles in 1988 (United Nations 1988). Discussion of this and subsequent drafts continued until the final revision in 1993. Following technical review by the Secretariat,7 the final draft was adopted without changes by the Sub-Commission at its 46th session in 1994.8

During the process of composing the Draft United Nations Declaration, the WGIP accepted interventions from states, intergovernmental organizations, UN specialized agencies, and organizations of indigenous peoples, with the latter having equal rights to express their views on the content of the text. As such, the draft that emerged substantially reflected the aspirations of indigenous peoples, especially as, over time, states gradually withdrew from the drafting process, attending in smaller numbers as the draft developed (Barsh 1996, 783). Of particular note is the right of self-determination, which was eventually included in the final draft text in the following format (Art. 3):

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.

This language reproduces the classic language of Common Article 1 of the International Human Rights Covenants of 1966 on the right to self-determination, and was met with a standing ovation from indigenous participants (Daes 2008, 18). Besides the right to self-determination, the Draft United Nations Declaration recognized amongst its 45 articles a range of collective rights, including protection from genocide and ethnocide (Arts. 6 and 7), the right to practice and perpetuate their culture (Arts. 12, 13 and 14), the right to comprehensive control over lands, territories, and resources (Arts. 25, 26, 27, 28 and 30), intellectual property rights (Art. 29), and the recognition of distinct indigenous political and legal systems (Arts. 31 and 33).

The text of the Draft United Nations Declaration produced by the WGIP has been described as radical by a number of commentators. Thornberry (2002, 375), for example, has stated that, ‘in the spectrum from reform to revolution [the Draft Declaration] reaches towards the upper revolutionary end, among the passionate colours’. Xanthaki (2007, 102), similarly, describes it as ‘an ambitious text that challenges state sovereignty at a deep level’. Nonetheless, at the twelfth session of the WGIP in 1994, some indigenous participants criticized the draft for not going far enough, with criticism focusing in particular on Article 31, which some argued might be read as imposing a limitation on the exercise of Article 3 (United Nations 1994a, para. 37). Article 31 states that:

Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.

Others, including the 1992 Nobel Peace Prize winner Rigoberta Menchu Tum, interpreted Article 31 as identifying autonomy as just one, presumably minimal, form of exercising a right to self-determination (United Nations 1994a, para. 39), while the text itself states in Article 42 that ‘the rights recognized herein constitute the minimum standards for the survival, dignity, and well-being of the indigenous peoples of the world’. For their part, few state representatives fully endorsed the draft text. Following adoption by the Sub-Commission, the latter submitted the Draft UN Declaration to its parent body, the Commission on Human Rights (CHR).9 Comprised of the representatives of 53 states, the CHR was unable to accept the text as received, and established, by Resolution 1995/32 of 3 March 1995, ‘an open-ended working group of the Commission on Human Rights with the sole purpose of elaborating a draft declaration, considering the draft contained in the annex to Resolution 1994/45 of 26 August 1994’ (United Nations 1995a). The main concerns of state representatives revolved around issues of self-determination, which many states regarded as posing serious threats to their territorial integrity, land and resource rights, and collective rights more generally.

An initial concern raised by the creation of the Working Group of the Draft Declaration (WGDD) was that the stricter rules of accreditation and participation applied by the CHR would limit the extent of participation of indigenous representatives and that the draft text would therefore become substantially diluted. After much lobbying on the part of indigenous delegates, however, the Commission established a procedure to allow indigenous organizations lacking consultative status with ECOSOC to attend sessions of the WGDD (United Nations 1995a, Annex). Though not meeting the degree of openness characterized by the WGIP, the procedure enabled over 100 indigenous organizations to participate, while, over time, indigenous delegates were also able to significantly influence the modalities of their participation and the working methods. These ‘procedural claims of the resistance’ (Tennant 1994) will be discussed in Chapter 4. Here, suffice to say that struggles to secure participation have been critical to the achievement of substantive goals, whilst also being emblematic of the wider struggle for self-determination.

Meeting annually from 1995 to 2006, the eleven years of deliberations in the WGDD managed to reduce some important fears of states, especially relating to self-determination, control over natural resources, and collective rights more generally. Yet at the first reading of the draft text at the opening session in 1995, only two articles met with no objections from states, while 26 articles were entirely objectionable to at least one government (United Nations 1996a; see also Barsh 1996, 804–805).10 As anticipated, indigenous NGOs and states were particularly polarized over the right to self-determination, which immediately arose as a difficult issue with Brazil’s objection to the use of the term ‘peoples’ in the title of the drafting group as it appeared on the draft agenda: ‘working group on a draft United Nations Declaration on the Rights of Indigenous Peoples’ (Barsh 1996, 796). A term that carries implications in international law, to avoid a stalemate all documents were revised to: ‘working group established in accordance with Commission on Human Rights Resolution 1995/32’ (United Nations 1996a, para. 14). During discussions on Article 3, only Australia, Bolivia, Cuba, Denmark, Fiji, Finland, and Norway supported its wording. Of the remaining states, five countries, including Iraq, Peru, the Philippines, the United States,...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Figures
• List of Abbreviations
• Foreword
• Acknowledgements
• Introduction: Indigenous Peoples, the United Nations and Human Rights
• 1 United Nations Engagement with Indigenous Issues
• 2 Theoretical Framing
• 3 The Development of a Global Movement
• 4 Claims of the Global Indigenous Movement
• 5 Reconfiguring Human Rights
• 6 The Impact of the Global Indigenous Movement
• References
• Index