The world’s indigenous peoples have a serious human rights problem: The nations of the world refuse to recognize that indigenous peoples have human rights.
All countries are ready to recognize that individual indigenous persons have rights. Those rights are the same as the rights of all human beings, and are now well secured by international human rights law and by the laws of many countries. The problems arise when indigenous peoples claim rights as “peoples.” As indigenous advocates frequently point out, the whole debate is over the letter “s.”
What are the rights that indigenous peoples seek?
First, they want to be recognized for who they are: distinct groups with their own unique cultures. Indigenous peoples want to enjoy and pass on to their children their histories, languages, traditions, modes of internal governance, spiritual practices, and all else that makes them who they are. They want to be able to pray on their ancestral lands without finding that those lands have been dug up to construct a gold mine, fenced off to create a safari park, or watered with sewage effluent pumped from a nearby city.
Second, they want the governments of the countries in which they live to respect their ability to determine for themselves their own destinies. For indigenous peoples, “self-determination” has a different meaning than it did for colonial-dominated nations in the mid-20th century. Self-determination relates to autonomy, not the right to secede from the state. It means the right to freely determine their political status and freely pursue their economic, social, and cultural development inside the country in which they live. They want to govern themselves in matters relating to their internal and local affairs, and to retain their distinct political, legal, economic, social, and cultural institutions. They want to educate their children in their own languages, and about their own traditions; to worship in their own ways; to establish media in their languages; to retain their traditional modes of resolving internal disputes; and to fully participate in any outside decision-making that could have an impact on their lives. At the same time, recognizing their interdependence with the country in which they live, they want to be able to participate in the political and economic life of that country, if they so choose.
Third, indigenous peoples want to enjoy the same rights as all other people without discrimination of any kind. They want to be regarded by everyone as full and equal human beings. They want to be protected from genocide, arbitrary execution, torture, forced relocation, or assimilation, and they want to enjoy their rights to freedom of expression, association, and religion. They want to be treated equally with respect to opportunities for education, health care, work, and other basic needs.
But because they are different, indigenous peoples want to be part of the decision-making process when it comes to the forms of their education, health care, economic development, and other services. They often talk about this in terms of the right to give their “free, prior, and informed consent” to state policies or practices that affect them, to ensure that those policies are compatible with their cultures and are not imposed upon them.
Fourth, indigenous peoples want to enjoy their rights to the lands, territories, and resources that they have traditionally owned, occupied, or otherwise used. Where such rights conflict with the needs of the state or other peoples, they want to participate as equals in an impartial and transparent process for resolving the conflict in a fair and respectful way. If the resolution is that indigenous peoples must move, they want equitable reparation, preferably in the form of lands of equal quality and value.
Fifth, indigenous peoples want to be left alone. They want the armed conflicts that embroil the states in which they live to take place somewhere other than on their lands. All too frequently, indigenous lands become favored battle zones because fighting forces see them as “vacant” or regard the resources they contain as being up for grabs. In such circumstances, indigenous leaders become military targets. Combatants hope that, with their leaders gone, indigenous residents will flee and leave them the territorial spoils.
Similarly, indigenous peoples want the loggers, miners, environmentalists, and development policy planners to acknowledge that they own or have rights to their lands and resources, and that they have the right to make free and informed decisions about what happens to their lands.
Indigenous peoples recognize that any act of conferring rights necessarily imposes obligations on the rights-holders. In addition to recognizing that they are part of the sovereign states in which they live, they also recognize that the full body of international human rights standards applies to them. Just as states must yield a degree of sovereignty in order to live under a global system that requires respect for human rights, so too must indigenous peoples. What they seek is to be officially recognized within that global regime, and to have their rights explicitly stated.
In identifying themselves as indigenous peoples, they do not mean to undermine the rights of anyone else, nor do they mean to undermine the global state system. In Africa, governments say “we are all indigenous,” by which they mean “we were all here before European colonists invaded.” The fact that all Africans are “indigenous” to Africa does not alter the fact that throughout the continent there are a handful of small ethnic groups with distinctive worldviews, socio-economic practices, and political marginality, who desire to retain their traditional ways as globalization washes over the continent. Similarly, throughout Asia there are many groups that are small in number, live in remote places, tend not to have access to educational resources, are marginal to the national economy, and have a long history of being politically marginalized.
These groups share with their indigenous brethren in the Americas, Australia, the Arctic, and the Pacific the experience of being marginalized, manipulated, and abused by colonial powers and their successors. As they always have, they look inwards to maintain their identities and their dignity. But for the past quarter century, they have looked outward as well. They have turned to one another—including to neighboring groups with whom they have had historic enmity—for support as they endeavor to persuade the countries of the world to recognize that they have rights. Through the United Nations they also have turned to states, appealing to them to formally issue a declaration that encompasses their rights.
A declaration is a simple, nonbinding description of rights, with no formal enforcement mechanism attached. But 26 years into the process, a United Nations Declaration on the Rights of Indigenous Peoples is still in limbo. No other group of human beings—women, children, refugees, workers, disabled peoples, victims of disappearance, or any other category—has waited so long.
Indigenous peoples will tell you that they are used to being patient. “After all,” say those in the Americas, “we’ve been waiting 500 years. We can wait a little longer.” That may be true, but it is nontheless in states’ own interest not to keep them waiting any longer. Indigenous peoples are increasingly organized, well-educated, empowered, and united. It is incumbent on all states to ensure that their considerable energies are harnessed for the good of their peoples, and for humanity. No good can come from states’ continued refusal to recognize that they—like all people on this planet—possess human rights.
Where do things now stand at the United Nations with respect to the Declaration on the Rights of Indigenous Peoples?
After being adopted by the UN Human Rights Council at its historic first session in June 2006, the Declaration on the Rights of Indigenous Peoples was forwarded to the UN General Assembly, where it was taken up by that body’s Third Committee, which considers social, humanitarian, and cultural matters. On a motion from Namibia, backed by the entire bloc of African states, the Third Committee recommended that the General Assembly withhold action until the end of its current session (September 2007) to give delegations more time to consult with their governments before voting. This recommendation was adopted by the General Assembly Plenary in December. Meanwhile, at the January 2007 session of the Organization of African Unity, African states decided to continue to act by consensus and as a bloc with respect to this document. Thus, if any states in Africa continue to have difficulty with the text, all the African states will oppose it.
African states’ concerns relate to the definition of “indigenous peoples,” the concept of self-determination, ownership of land and resources, establishment of distinct political and economic institutions, and national and territorial integrity.
Their concerns about the establishment of distinct political and economic institutions undoubtedly arise because African countries are made up of many different ethnic groups that regularly compete for power. In some countries, such as Rwanda, ethnic identity has been manipulated by power-mongers to horrific ends. It is not surprising that those governments would want to exercise extreme care before recognizing distinct ethnically based political or economic institutions. But as Cultural Survival pointed out in a previous issue of this magazine, Rwanda’s only indigenous group, the Batwa, represents a tiny minority of the population who have never held any form of political power. They were victimized by both sides during the genocide and continue to live under the most unimaginably impoverished and marginal circumstances. To allow them to form a civil-society organization to protect their rights threatens no one but those who would seek to impose power blindly rather than through transparent democratic processes.
Defining Indigenous Peoples
The biggest stumbling blocks for African nations involve the questions of the definition of indigenous peoples, and ownership of land and resources.
No definition of “indigenous peoples” appears in the Declaration on the Rights of Indigenous Peoples, just as no definition appears in the mandate for the Permanent Forum on Indigenous Issues or any of the other United Nations bodies or special procedures that relate to indigenous peoples. This is deliberate. It has proved impossible to achieve a precise definition that takes in all the various types of peoples who self-identify as indigenous and are accepted by other indigenous peoples. All the wordings put forward to date have been either over-inclusive or under-inclusive. Neither is helpful. Among indigenous peoples, inter-governmental organizations, and most states, consensus has emerged that it is better not to define “indigenous peoples” and to focus instead on defining and protecting their rights.
As Rodolfo Stavenhagen, the UN Special Rapporteur on the Situation on Human Rights and Fundamental Freedoms of Indigenous People, wrote in his 2001 UN report,
There is no internationally agreed upon definition of indigenous peoples. Different states adopt different definitions in terms of their particular contexts and circumstances. The term “indigenous” is frequently used interchangeably with other terms, such as “aboriginal,” “native,” “original,” “first nations,” or else “tribal” or some similar concepts. In some states, local terms might be commonly used that are not easily translatable. In other countries, no formal designation exists even though there might be general agreement that such populations do in fact inhabit certain areas of the country. And in still other countries, the existence their definition becomes even more problematic, yet the absence of an international definition should not prevent constructive action in the promotion and protection of the human rights of indigenous peoples.
In international law, deciding to forego a definition is not new. Past experience has taught that definitions can sometimes undermine effective action to protect human rights in our diverse and rapidly changing world. In the late 1970s and early 1980s there was much debate about whether the horrific suffering that was taking place in Cambodia constituted genocide, since the victims did not seem to fit within any of the categories in the Convention on the Prevention and Punishment of Genocide. The definition of “refugee” in the Convention and Protocol Relating to the Status of Refugees has created similar problems for meeting the needs of displaced people who have fled from violence or persecution but have not crossed an international border.
When the United Nations adopted the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, it did so with a precise definition of torture, but no definition of cruel, inhuman, or degrading treatment or punishment (CID). But both types of acts are clearly prohibited. The problem was that consensus on the definition of torture could be reached, whereas states and human rights advocates felt it was better to leave it to regional or national arenas to negotiate the precise scope of CID. An act that constituted CID in Western Europe might be acceptable in a country with legal system based on Shar’ia law, or in the United States, where the constitution already had a more restrictive notion of “cruel and unusual punishment”—one that the government was not prepared to expand.
Both definitional over-inclusiveness and under-conclusiveness pose risks for a workable Declaration on the Rights of Indigenous Peoples. Too narrow a definition could leave vulnerable indigenous groups—particularly in those regions of the world where fair and efficient legal systems are still emerging from the havoc of colonialism—without even the most modest international recourse. Too wide a definition could flood international indigenous rights machinery with claims by large minority groups who have resources and political clout that indigenous peoples lack.
Despite the lack of a definition, there is consensus around the general indicators of who is indigenous. The International Labor Organization, the World Bank, and various intergovernmental bodies have offered functional definitions that describe the characteristics of these peoples. They all include such features as self-identification as a distinct ethnic group; experience of or vulnerability to severe disruption, dislocation, or exploitation; long connection with a particular territory; and the wish to retain a distinct cultural identity.
But the precise combination of factors will necessarily vary from country to country and from group to group. In some cases, whether or not a group is indigenous will have to be negotiated, or even adjudicated. What factors are relevant also may depend on what rights allegedly are being violated. What is critical, and still missing, is official international acknowledgement that all indigenous peoples are entitled to all of the human rights established under international law, and that small, marginalized groups who suffer abuses directed at their group as a whole have rights that correspond to their status as a group and not merely as individuals.
Given these definitional circumstances, and Africa’s longstanding insistence that all Africans are “indigenous,” some African states might choose to define “indigenous peoples” in a way that excludes small minority ethnic groups with radically different cultures—the very peoples we would identify as indigenous. Doing so would have a snowball affect, with some Asian countries similarly wanting to define away their duty to respect the rights of their distinct, small-numbered vulnerable populations in the same way. Not only would this divide the globe into regions with and without indigenous peoples, it would instantly divide the indigenous peoples’ movement, which is made up of indigenous peoples from all parts of the world.
Indigenous Lands and Resources
The other stumbling block, indigenous lands and resources, is one that all regions of the world face equally. It is hard for states to accept the notion that small populations that do not fit easily into the national body politic and are culturally and linguistically hard to communicate with might have the right to control territories or resources that states could use to address the needs of the majority of their citizens. In many countries the problem hits a sore nerve, since indigenous peoples possess those lands or resources because of past forced relocation or other abuses.
The easiest and most common solution is for states to use their legal powers to quash indigenous peoples’ rights to their lands and resources. Without question, the Declaration on the Rights of Indigenous Peoples would make this more difficult to do. Even if indigenous peoples’ rights were annulled at the national level, they would still have recourse to the court of international public opinion and perhaps even to international juridical bodies.
Fortunately, the Declaration provides states with a means to balance multiple interests without violating indigenous peoples’ rights. It insists that states consult with indigenous peoples to obtain their free and informed consent prior to the approval of any project affecting their lands or resources. And it requires that states provide effective mechanisms for redress should indigenous peoples suffer adverse impact from such projects.
This can be to the state’s own benefit. When states negotiate in good faith with indigenous communities they may discover that the community itself can identify solutions that could lead to positive outcomes for all. For example, many indigenous groups use some locations within their territories only occasionally for ceremonial purposes. If a state were willing to guarantee that these would remain undisturbed, the community might agree to yield access to other lands or resources for the common good. In the case of large-scale economic development projects or mines, it might be the case that a local indigenous community cares more about access to jobs than it does about maintaining all of its territory for traditional uses. Thus, in exchange for a guarantee of jobs, the community might be willing to yield territory. In other cases, an indigenous group might believe that its true territory lies somewhere other than where it now lives, and would be willing to exchange one territory for another.
But the state will never know this if it does not make the effort to approach the indigenous group in the same way that it would approach any other owner of land or resources it desires: respectfully, mindful of the prevailing rights of the party being approached, and with the willingness to negotiate to achieve a fair result.
Making the Declaration a Reality
The challenges facing the world’s indigenous peoples to achieve General Assembly adoption of the Declaration on the Rights of Indigenous Peoples this year are daunting. Indigenous peoples have participated in a decades-long process to achieve consensus on an acceptable text, and now the General Assembly now holds all the cards. There are no regular procedures for indigenous peoples to participate in this final round, and the General Assembly has the full power to rewrite the text and adopt the new version without indigenous peoples’ participation or consent.
Doing so would be the ultimate affront to indigenous peoples who have worked long and hard and engaged in much compromise to achieve the current text. Solutions that split the world into indigenous and non-indigenous geographic divisions, or that water down the text to satisfy the interests of a handful of states are unacceptable. For indigenous peoples, it would be better to have no declaration at all than one that, after such a long labor, is born in this way.
So now it falls to the states, through the UN General Assembly, to do what is long overdue and what is right: adopt the Declaration on the Rights of Indigenous Peoples as presented by the Human Rights Council at this General Assembly session.
Ellen L. Lutz is the executive director of Cultural Survival.