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Indigenous peoples, an introduction from a Human Rights perspective.

손다그

 

Fr. Antoine Sondag

Indigenous peoples is a topic which has raised international attention in the recent years, especially among people interested in Human Rights, international law and more generally among people interested in the global trends shaping our current world. Among these global trends, the increasing awareness of Indigenous Peoples (IPs) is one of the most powerful.

A milestone in this field of IPs has been the adoption of ILO Convention (International Labor Organization, based in Geneva) Convention N° 169 on Indigenous and Tribal Peoples in 1989. A second important step in the raising awareness of the dignity and protagonism of IPs has been the proclamation by the General Assembly of the United Nations of the Second International Decade of the World’s Indigenous People (2005-2014). And the same GA of the UN has adopted the United Nations Declaration on the Rights of Indigenous Peoples in September 2007. We may add here the adoption by UNESCO of the Universal Declaration on Cultural Diversity in 2001.

Definition  of  IPs?

There is no legal binding juridical definition of IPs. The convention states the rights of IPs without giving a strict definition of the beneficiaries. It is said : tribal peoples whose social, cultural and economic conditions distinguish them from other sections of the national community… peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country… peoples who consider themselves distinct from other sectors of the societies now prevailing in those territories… non dominant sectors of society who are determined to preserve and transmit to future generations their ethnic identity, in accordance with their cultural patterns, social institutions and legal systems…

In summary, there is no real definition for IPs, we only have elements of a definition. There is no legal definition, even not in a juridical text like the ILO convention. At the same time, juridical texts are using the word IPs.

Without a juridical strict definition on IPs, we have to rely on academic work to try to approach this reality of IPs. In a global overview of this academic work, it is possible to say that, generally, the following elements are present in any attempt to define IPs:

  • A question of time: IPs have been prior in time to use a specific territory, before an “invasion”, before the colonization…
  • A willingness to perpetuate cultural distinctiveness: language, social organization, religion, spiritual values, law, institutions, culture…
  • A self-identification as a specific group (and also recognition by other groups or by state authorities)
  • An experience of marginalization, exclusion or discrimination…

Self-identification is key to IPs issues

Self-identification is central to IP’s issue. It is guaranteed in article 33 of the UN Declaration on the Rights of IPs: “IPs have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live. IPs have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.”

IPs as minorities?

The defenders of Human Rights who are basing their claims on international law know very well the importance of the category of minority for international Human Right provisions. A good part of the activities of UN bodies in the field of Human Right is based on the category of minority. This is probably because in a world with 193 Member States, the minority is an important social, cultural and political element. Out of 7 billion human beings on this planet, more than 1 billion belong to a minority, if one considers the criteria of language, culture, religion (in countries where one religion is considered as the religion of the state). So defending the minorities, whatever the definition of the minority, is a central part of the task for who is interested in defending the right of people, all people, without consideration of the specificities of the person in term of language, religion, race (or colour of skin), cultural tradition. We may add to these “traditional” criteria to identify a minority the criteria of “descent” as it is stated in the recent UN documents to take into consideration the cast system prevailing in some countries (a social status or a profession assigned to a person because of the birth in a specific family).

Two relevant strategies

To defend the members of Indigenous Peoples, we may use two strategies, two types of HR activism.

First one consists in defending the members of IPs as individual human beings. The IPs members are human beings like others, and because of that, they have the same right as any human being in this world. And we are using the universal conventions and treaties guarantying the rights of any human being.

Second strategy consists in taking into account the specificities of IPs and basing the work on the specific conventions ratified on these issues.

The two strategies are not exclusive one from the other and should not be opposed. It is possible (advisable) to use both strategies, at the same time.

IPs members are human beings and as such should be protected by the conventions on HR, because these human rights principles are universal, indivisible… and therefore applying to all. The HR principles are implying non-discrimination and equality… for instance, IPs children are (also) children and therefore they should benefit from the rights of children and youth as it is stated in the Convention on the Rights of the Child.

The main instruments to defend people through the mean of conventions protecting human beings as such, in general are the following:

  • The Universal Declaration of Human Rights (1948)
  • The International Covenant on Civil and Political rights 1966
  • The International Covenant on Economical, social and cultural rights 1966
  • The Int. Convention on the Elimination of All Forms of Racial discrimination 1965
  • The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979
  • The Convention on the Rights of the Child 1989

A second strategy to defend the rights of IPs consists in basing the actions on a culturally sensitive approach. The main international tool in this field is the UNESCO Convention on protection and promotion of the diversity of cultural expressions, ratified in 2005. Three features in this convention: the protection of cultural expressions, a legal recognition of the value of cultural goods, independently of their market value (if any), the indivisibility of sustainable development and culture…

The main juridical instruments in this field are the following:

  • The ILO Convention 169 on Indigenous and Tribal Peoples
  • The UNESCO Convention on protection and promotion of the diversity of cultural expressions (2005)

The general HR standards are guarantying: no discrimination in housing, education, income, employment opportunities, training opportunities… there is also a right of expression, civil freedoms and political participation.

The specific rights of IPs

The ILO Convention 169 is more specific and enters in more details when it comes to the rights of IPs. Here a list of rights which are specifically foreseen for IPs:

  • The right to own and control their lands
  • To manage natural resources
  • To obtain (prior to approval of any project affecting their lands and resources) free, prior and informed consent, known by the acronym FPIC
  • To be consulted in development projects

We have to stress the importance of this free, prior and informed consent (FPIC), before any so called mining, equipment or development project. This is important because in many cases, this FPIC is not respected. Many cases where the consent is not free, because some members of the community have been bribed, have been literarily bought by the  land lord… the consent is not prior, because the great works have already begun before any discussion with the local traditional communities. And the FPIC is not informed because the IPs have difficulties to discuss the issue, just because they are not aware about what is going on.

FPIC is a major standard, a major concept and every IPs defender should be aware of the importance of this category of FPIC.

Local analysis and local action (and global).

Defending IPs interests means paying attention to the real situation of IPs. Beginning with the use of statistics: one should not accept in a naïve way the global or national statistics produced by the State administration. We should always ask for desegregation of the data, highlighting the specific situation of members of the IPs. Illiterate rate, housing, unemployment, income, health issue… always, we need specific data about IP members. Average is not enough.

Defending IPs means also implementing local analysis about their situation. Analysing local situation and acting at local level. Local … and global.

Using the UN mechanisms

All IPs defender should be aware about the possibilities given by the UN mechanisms in the field of Human Rights. Starting by the mechanism of Universal Periodical Review (UPR). Every four and a half year, each country is submitted to a peer review within the Human Rights Council, and has to express publicly how the country has progressed since the previous UPR in implementing the recommendations made to that specific country. This is a great opportunity for NGOs, and civil society in general to express their views on the situation of the country, and more specifically on the situation of IPs.

UPR is a good tool for NGOs to come together and to work together. Starting by organizing a common training in order to be aware about the situation and the opportunities in working together as Civil Society Organizations. We could also include in this field the Faith Based Organizations, all kind of Church related NGOs and institutions. After training, the time comes for networking, entering in alliances with likeminded organizations. In order to lobby and advocate for a better respect of human rights standards.

The success of this kind of strategy depends on the ability to articulate the work at local level (knowledge of the issues, efficiency of the work) and the advocacy at national level (with governments) and international level (with other countries and international institutions). A meeting like the one we had in Chiang Mai, the work we are implementing with Pax Romana (an international NGO with consultative status with the UN institutions) are key to the success of our engagement for the betterment of the IPs.

 

<Peace on Asia>, Seoul : WTI 2013