United Nations Declaration on the Rights of Indigenous Peoples Introduction Indigenous Peoples Defined. International law has not adopted any formal definition of indigenous peoples, however, a study conducted by Jose Martinez Cobo who was commissioned by the United Nations to study on the problem of discrimination against indigenous peoples has provided a working definition in order to determine who are the indigenous peoples who are. According to the Martinez Cobo Study, the indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories,consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social in-stitutions and legal system. Statistics as of the year 2013 provide that there are 370 million indigenous peoples across the globe; they compose the five percent of the worlds entire population; fifteen percent of the worlds poor sector and one-third of the worlds extremely poor sector. The international Labor Organisation has also attempted to ascertain who the indigenous peoples are and arrived at a definition that they are descendants of population which inhabited a coun-try or geographical region during its conquest or colonisation or the establishment of present state boundaries and retain some or all of their own social, economic, cultural and political institutions. In addition, an indigenous person refer to one who belong to indigenous populations through self-determination as indigenous (group consciousness) and is recognised and accepted by the popula-tions as one of its members (acceptance by the group). This preserves for these communities the sove-reign right and power to decide who belong to them, without external interference. Relevant Characteristics of Indigenous Peoples. - Occupation and use of a specific territory; - Voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organisation, religion and spiritual values, modes of production, laws and institutions; - Self-identification, as well as recognition by other group, or by State authorities, as a distinct collectivity; and - An experience of subjugation, marginalisation, dispossession, exclusion or discrimination. International Community Addressing the Issues affecting the Indigenous Peoples. The International Labor Organisation had advanced steps to acknowledge the rights of the In-digenous Peoples through the Indigenous and Tribal Populations Convention in 1957 which is now closed for ratification; Indigenous and Tribal Peoples Convention in 1989. Non-Governmental Indi-genous Peoples Organisation was also established from 1960s to 1970s. In addition, 1993 has been proclaimed as the Year of the Worlds Indigenous People together with the drafting of declaration on the rights of Indigenous Peoples. Adoption of mechanisms with specific mandates to address the right of Indigenous Peoples, to wit: - The Special Rapporteur on the right of indigenous peoples - established by the Commission on Human Rights (now the Human Rights Council) (2001) - The United Nations Permanent Forum on Indigenous Issues (2002) - The Expert Mechanism on the Rights of Indigenous Peoples (2007) - Establishment of treaty-monitoring bodies - Universal Periodic Review (UPR)
The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the Unit-ed Nations General Assembly on September 13, 2007 where a majority of one hundred forty-four (144) states favoured the said declaration; four (4) voted against it - Australia, Canada, New Zealand and the United States of America and eleven (11) abstained - Azerbaijan, Bangladesh, Bhutan, Burun-di, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine. The four States who voted against the Declaration have all since reversed their position. This worldwide support indicates an international consensus on the normative expression of the rights of indigenous peoples in a way that is coherent with existing international human rights standards. The consistent reference to the Declaration in the universal periodic review (UPR) process further high-
lights this international consensus. (A/HRC/12/8/Add.1, para. 6; and A/HRC/11/17, para. 86 and rec-ommendations 45 and 52) The Declaration gives prominence to collective rights to a degree unprecedented in interna-tional human rights law; establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world; elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation on indigenous peoples. Therefore, the United Nations Declaration on the Rights of Indigenous Peoples clarifies how the Universal Declaration on Human Rights applies for the survival, dignity and well-being of the In-digenous Peoples and that one can say Now I am not an object, I am not a subject, I am a human be-ing! (Chief Willton Littlechild, Chairperson-Rapporteur of the Expert Mechanism) The Declaration is a visionary step towards addressing the human rights of indigenous peoples. It sets out a framework on which states can build or rebuild their relationships with indigenous peoples. The result of more than two decades of negotiations, it provides a momentous opportunity for States and indigenous peoples to strengthen their relationships, promote reconciliation and ensure that the past is not repeated. (Ban Ki-moon, UN Secretary General) Implementation of the Declaration. The Declaration was adopted though a resolution of the General Assembly, unlike treaties or conventions, resolutions do not per se create legally binding obligations on States. However, as a resolution adopted with the approval adopted with the approval of an over-whelming majority of Member States, the Declaration represents a commitment on the part of the United Nations and Member States to its provisions, within the framework of the obligations estab-lished by the Charter of the United Nations. How does the declaration relate to the international standards?
The treaty bodies have, in their reports and recommendations, provided general interpreta-
tions of the rights set out in these treaties and their application to indigenous peoples:
- The Committee on the Elimination of Racial Discrimination issued general rec-
ommendation No. 23, which calls on States parties to ensure indigenous peoples rights to culture,
land and political participation are recognised.
- The Committee on the Rights of the Child adopted an important and extensive
general comment on the rights of the indigenous child.
- The Human Rights Committee continues to invoke the right to self-
determination in relation to indigenous peoples, particularly article 1 (2) (the right to freely
dispose of natural wealth and the right to be secure in the means of subsistence).
- The Committee on Economic, Social and Cultural Rights has also made refer-
ence to article 1 in relation to the effective enjoyment by indigenous peoples of their
rights to ancestral domains, lands and natural resources. (United Nations Declaration on
the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions, 2013)
The Role of Human Rights institutions in advancing the rights of the IPs
PARIS PRINCIPLES Competence and responsibilities
1. A national institution shall be vested with competence to promote and protect human rights.
2. A national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composi-tion and its sphere of competence.
3. A national institution shall, inter alia, have the following responsibilities:
(a) To submit to the Government, Parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power to hear a matter without higher refer-
ral,opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights; the national institution may decide to publicize them; these opinions, recommenda-tions, proposals and reports, as well as any prerogative of the national in-stitution, shall relate to the following areas:
(i) Any legislative or administrative provisions, as well as provi-sions relating to judicial organizations, intended to preserve and ex-tend the protection of human rights; in that connection, the nation-al institution shall examine the legislation and administrative provi-sions in force, as well as bills and proposals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights; it shall, if necessary, recommend the adoption of new legisla-tion, the amendment of legislation in force and the adoption or amendment of administrative measures
(ii) Any situation of violation of human rights which it decides to take up
(iii) The preparation of reports on the national situation with re-gard to human rights in general, and on more specific matters (iv)Drawing the attention of the Government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situ