Not until after the Second World War did indigenous people become the subject of debate in the international human rights arena. There have been numerous attempts to formulate a definition of the term ‘indigenous peoples’ but a generally accepted definition has been slow to emerge. Similar to the case of minorities, the diversity of indigenous peoples impedes a precise definition as the indigenous differ enormously with regard to culture, religion culture and patterns of social and economic organisation. Some estimated 5,000 indigenous peoples comprising around 370 million persons live in more than 70 countries from the Arctic to the Amazon. These groups include the Mayas in Guatemala, the Inuit in Canada, the Masai in Tanzania, and the Naga in India among many others.
In his early 1980s study, ‘The Problem of Discrimination against Indigenous Populations’, Mr. Martinez Cobo, then the Special Rapporteur of the Sub-Commission for the Prevention of Discrimination and Protection of Minorities, formulated a working definition that highlighted several important characteristics of indigenous peoples:
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 in 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 basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system. (E/CN.4/Sub.2/1986/7/Add.3 (Geneva, 1987).
Mr Martinez Cobo’s definition was then widely accepted, though not fully comprehensive, as debate would demonstrate. Nonetheless, in light of Cobo’s definition, as well as defining articles in the ILO Conventions mentioned below, the following are general a characteristics by which indigenous peoples may be distinguished:
They have a strong affinity with the land they live on. Their environment is essential for their survival as a cultural entity; it is decisive for their social and cultural conditions;
They are not dominant in their present national society, usually they have little if any influence on state policy;
They generally speak their own language and have common cultural qualities;
Their political/organisational structure is generally of a decentralised nature.
The first international standard on indigenous populations was ILO 107 (1957), which was revised and reformulated in 1989 and amended in ILO 169. In this Convention, indigenous peoples are defined in Article 1(1) as:
a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.
b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all their own social, economic, cultural and political institutions.
Article 1(2) complements Article 1(1) by stating that: ‘self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.’
The adoption of the ‘United Nations Declaration on Rights of Indigenous Peoples’, following more than twenty years of debate, was a landmark moment in the struggle for equality. Although the Declaration, adopted by the UNGA in September 2007, is not a legally binding instrument under international law it sets an important standard for the treatment of the world’s 370 million indigenous people. The Declaration will undoubtedly be a significant tool towards eliminating human rights violations against indigenous people and assist them in combating discrimination and marginalisation. The Declaration contains no new rights, but rather reaffirms the right of indigenous peoples to the protection of rights enshrined in human rights treaties. The Declaration sets out the individual and collective rights of indigenous peoples, as well as their rights to culture, identity, language, employment, health, education and other issues. It emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions and to pursue their development in keeping with their own needs and aspirations. The Declaration prohibits discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them, and their right to remain distinct and to pursue their own visions of economic and social development. Furthermore, the Declaration calls upon states parties to recognise the right of indigenous peoples to the lands and resources which they have traditionally owned, occupied or used and the rights to compensation and redress.
During its drafting several countries expressed concern about the document’s lack of a clear definition of the term indigenous; Article 33 (1) simply states that: ‘Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and tradition. Another bone of contention during the drafting processes was the right to self-determination. The Declaration sets out the right to autonomy in local affairs (Article 4), the right to maintain distinct political institutions (Article 5) and the right to control the primary education system (Article 14). Several states expressed concern that these provisions could be interpreted as to impinge the territorial integrity of the state. In the end, it was felt that the rights were effectively balanced by Article 46, which declares no provision of the Declaration may be ‘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’.
The Convention on the Rights of the Child identifies the especially vulnerable position of indigenous children, and seeks to ensure that they can develop within their own culture, religion and language (Article 30), whilst also ensuring that their education reflects these facets of their identity (Article 29). The Committee on the Rights of the Child interprets these provisions in General Comment No. 11, ‘Indigenous Children and their Rights under the Convention’. The Committee emphasises, inter alia, that cultural practises must be exercised in accordance with other provisions of the CRC. As a result, harmful practices such as early marriages and female genital mutilation are neither condoned nor protected under the Convention.
Although instruments, such as the Declaration on Indigenous Rights, ILO 169 and the Convention on the Rights of the Child address indigenous peoples as separate from minorities, the Human Rights Committee has established that indigenous peoples are minorities for the purposes of Article 27 (General Comment 23) (see IV§6 above). Other treaty bodies also deal with minorities; for example, the Committee on the Elimination of Racial Discrimination (CERD) has issued a General Recommendation on Indigenous Rights under CERD (General Recommendation 23). The Inter-American Democratic Charter stipulates that the protection and promotion of the human rights of indigenous peoples contributes to the strengthening democracy and citizen participation (Article 9). The Organisation of American States (OAS), through its Working Group is currently in the process of revising the text of its Draft Declaration on Indigenous Rights. At the Working Groups 11th meeting, held in April 2008, issues given particular attention included how to ensure that the OAS Declaration will be both compatible and complementary to the UN Declaration.
The Human Rights Committee has been called upon several times to decide on possible infringements of indigenous peoples’ human rights. A number of cases have involved complaints relating to language rights, access to effective remedies, and the preservation of indigenous groups’ cultures. Other central issues have included: the dispossession by the state of the ancestral land; the legality of rules which stipulate that those who marry a non-indigenous person lose membership in an indigenous minority; forced use of a non- indigenous language during official court proceedings; indigenous rights to natural resources; and state interference with traditionally indigenous lands (see, e.g., Hopu v. France, Lovelace v. Canada, Diergaardt et al. v. Namibia, Mahuika et al. v. New Zealand and Äärelä and Näkkäläjärui v. Finland).
There are currently three charter-based bodies in operation at the UN level dealing with issues relating to indigenous peoples: a) the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, b) the Permanent Forum on Indigenous Issues and c) the Expert Mechanism on the Rights of Indigenous Peoples.
In 2001, the UN Commission on Human Rights appointed a Special Rapporteur on the Situation of the Human Rights and Fundamental Freedoms of Indigenous Peoples. The position was created in response to the growing international concern regarding the marginalization and discrimination against indigenous peoples worldwide (Resolution 2001/57). Originally set for a period of only three years, the Special Rapporteur’s mandate has been renewed twice, with the most recent three year mandate passed by the Human Rights Council in 2007. The Rapporteur’s duties include carrying out thematic research and country visits, submitting reports to the UNGA, and sending and receiving communications. In terms of the latter, the primary sources for communications are indigenous organizations, and both inter- and non-governmental organizations. Most of the communications sent by the Rapporteur are ‘urgent appeals’ when either individuals or whole indigenous communities face impending human rights violations.
The Special Rapporteur has, under his mandate, addressed a wide range of human rights issues. He has, for instance, not only formulated a proposal for a definition of indigenous peoples, but has also addressed the role played of intergovernmental and non-governmental organisations in rights protection, the elimination of discrimination, and basic human rights principles. The Rapporteur has called for action across in fields such as health, housing, education, language, culture, social and legal institutions, employment, land, political rights, religious rights and practices, and equality in the administration of justice. His conclusions, proposals and recommendations mark important progress in the UN’s consideration of the human rights problems faced by indigenous peoples.
The Permanent Forum on Indigenous Issues serves as an advisory body to the Economic and Social Council, with a mandate to discuss indigenous issues relating to economic and social development, culture, the environment, education, health and human rights. The Forum is responsible for the following: a) providing advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the UN through the Council; b) raising awareness and promoting the integration and co-ordination of activities relating to the indigenous issues within the UN system; and c) preparing and disseminating information on indigenous issues.
The Expert Mechanism on the Rights of Indigenous peoples was established in order to provide thematic expertise to the Human Rights Council. This advice takes the form of studies, proposals and an annual report on its activities. The Special Rapporteur and a representative of the Permanent Forum shall attend its annual meeting in order to avoid any duplication of work. Established by Resolution 6/36, the mechanism replaces the Working Group on Indigenous Populations, which was disbanded along with the Human Rights Commission.
At the regional level, the EU Council for Development Co-operation in 1998 issued a Resolution concerning Indigenous Peoples. In particular, the Council underlines the positive contribution of indigenous peoples in the development process, their vulnerability and the risk that development programmes may disadvantage them, their key role in conservation of natural resources and the rights of indigenous peoples to secure a livelihood. In 2002, the Council adopted conclusions on indigenous peoples, where it, inter alia, stressed mainstreaming of indigenous issues into EU policy and recommended the integration of concerns of indigenous peoples into political dialogue with partner countries.
At the Inter-American level, the Inter-American Commission and Court have dealt with several cases referring to indigenous rights. For example, in the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the Court held that the state must adopt the necessary measures to create an effective mechanism for delimitation, demarcation and titling of the property of indigenous communities’, in accordance with their customary law, values, customs, and mores. The Court also decided that, until such a mechanism was created, the state had to refrain from any acts affecting the existence, value, use, or enjoyment of the property located in the geographic area where the members of the indigenous community lived and carried out their activities.
In October 2000, at the 28th Ordinary Session of the African Commission on Human and Peoples’ Rights, the situation of indigenous peoples in Africa was, for the first time, a separate and specific item on the agenda. This meeting adopted the ‘Resolution on the Rights of Indigenous Populations/Communities in Africa’ which in turn provided for the establishment of a Working Group on Indigenous Peoples/Communities. The Working Group’s mandate, which has been renewed several times, includes: gathering information and compiling reports; making recommendations to the ACHPR; sensitizing member states to the situation of indigenous peoples; cooperating with international and other regional mechanisms; conducting country visits and holding sensitization workshops. The African Commission has not dealt with many cases regarding indigenous peoples. In Katangese People’s Congress v. Zaire (Communication 75/92), the African Commission, whilst recognising the right of the Katangese to self-determination, found no violation of that right as it can only be exercised in harmony with the principles of sovereignty and territorial integrity.