FPHRC on the Declaration on the Rights of Indigenous Peoples

FPHRC on the Declaration on the Rights of Indigenous Peoples

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John Ahni Schertow
August 16, 2006
 

From: First Peoples Human Rights Coalition
Subject: [Bulk] Inherent rights and the Declaration

Dear friends and colleagues,

Recently, language in the United Nations Declaration on the Rights of Indigenous Peoples was criticized – with the suggestion that due to this language, no human rights “are available” now or in the future for Indigenous peoples, if the Declaration is adopted by the General Assembly this fall.

Within weeks, it was suggested in another place, that if the Declaration were adopted, our already existing human rights, as recognized and affirmed in international law would somehow be diminished or cease to exist altogether.

We would like to use a few questions to examine the underlying assumptions of these claims.

· Are our rights as Indigenous peoples not inherent (pre-existing)? Are they not inalienable (cannot be taken away)?

Indigenous peoples’ human rights, like all human rights, are widely recognized as inherent and inalienable. U.N. declarations do not ‘grant’ human rights, and cannot be used to extinguish them. We have rights as Indigenous peoples, because we exist as Indigenous peoples. Declarations can ‘affirm’ that specific human rights are recognized by governments, and may describe them in more detail.

The 6th preambular paragraph of the Declaration on the Rights of Indigenous Peoples further reinforces that the collective rights of Indigenous peoples are inherent. “Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources;” (emphasis added)

Governments can contribute to the language of a declaration. Governments can agree to a human rights declaration. They can sign and ratify a human rights treaty. Governments can ‘promote’ and ‘protect’ human rights that are recognized internationally or regionally.

Governments can disagree that certain rights exist. For instance, the United States has not ratified three of the six core human rights treaties (recognizing economic, social, and cultural rights; the rights of the child; and the need to eliminate discrimination against women). So, even though the overwhelming majority of countries in the world may affirm these rights, a government can withhold its agreement. Without authority, governments often misrepresent the value of a human right or fail to meet their own human rights obligations. But neither governments nor declarations can extinguish human rights.

It is worth remembering that human rights are inherent.

a.. Are many of our human rights not already recognized in international declarations or treaties?

Many of the provisions enumerated in the Declaration are already part of international law.

Article 1 of the Declaration affirms, “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in . international human rights law.”

For instance, the collective right of Indigenous peoples to self-determination is enumerated in common Article 1, Paragraph 1 of both the Covenant on Civil and Political Rights (CCPR) and the Covenant on Economic, Social, and Cultural Rights (CESCR). Common Article 1 reads, in part:

1. All 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.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources . In no case may a people be deprived of its own means of subsistence. (emphasis added)

Another example from the CCPR is Article 27, the right to our own cultures. A broad definition of culture is applied to this right, which acknowledges an indigenous perspective. “[C]ulture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional
activities as fishing or hunting.”

Human Rights Committee, General Comment No. 23: The rights of minorities (Art. 27), paragraph 7

Various other United Nations human rights instruments address culture, health, education, development, equality, non-discrimination, prohibition against genocide, etc. Some provisions in these instruments, including the last two provisions, are widely considered to be customary international law.

· Is the CCPR legally binding?

As a Covenant (treaty), the CCPR is legally binding for those countries that have voluntarily ratified the treaty.

Countries with Indigenous peoples, nations, and communities – that have ratified one or both Covenants, recognizing common Article 1 of the treaties:

Algeria, Angola, Argentina, Australia, Bangladesh, Belize, Benin, Bolivia, Botswana, Brazil, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Central African Republic, Chad, Chile, China, Colombia, , Congo, Costa Rica, Cote d’Ivoire, Democratic Republic of the Congo, Denmark (in regard to the Indigenous peoples of Greenland), Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, Finland, Gabon, Guatemala, Guinea, Guyana, Honduras, India, Indonesia, Japan, Kenya, Malawi, Mali, Mauritania, Mexico, Mongolia, Morocco, Namibia, Nepal, New Zealand, Nicaragua, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Russian Federation, Rwanda, Saint Vincent and the Grenadines, Senegal, Somalia, South Africa, Sri Lanka, Sudan, Suriname, Sweden, Thailand, Tunisia, Uganda, United Republic of Tanzania, United States of America, Uruguay, Venezuela, Viet Nam, Zambia, Zimbabwe

Ratification information for all UN Member States at: http://www.ohchr.org/english/countries/

· Can a U.N. declaration weaken or extinguish the legal effectiveness of already existing international treaty law?

Article 45 (new approved text using new numbering, previously Article 44) of the Declaration specifically provides that it cannot.

“Nothing in this Declaration may be construed as diminishing or extinguishing the rights indigenous peoples have now or may acquire in the future.”

The Human Rights Committee is the treaty monitoring body for the CCPR. It recently released its ‘Concluding Observations’ on the United States’ implementation of the Covenant. It recommended, among other things, that the United States should “… take further steps in order to secure the rights of all indigenous peoples under articles 1 and 27 of the Covenant .” (Paragraph
37, at:

http://www.ohchr.org/english/bodies/hrc … SA.CO.pdf, emphasis added)

In their previous (1995) ‘Concluding Observations’, the Committee recommended to the United States that ‘steps be taken to ensure that previously recognized aboriginal Native American rights cannot be extinguished.” In its recent recommendations, the Committee expanded on this point to recommend that the U.S. “review its policy towards indigenous peoples as regards the extinguishment of aboriginal rights on the basis of the plenary power of Congress regarding Indian affairs and grant them the same degree of judicial protection that is available to the non-indigenous population.”

It is clear Indigenous peoples have existing human rights. Article 45 (previously Article 44) affirms that nothing in the Declaration can weaken or destroy our rights. The recent misrepresentations could be the result of inaccurate information. Or, they could reflect some sort of legal
misunderstanding. Even if no harm is intended, misstatements about the Declaration or about the human rights of Indigenous peoples play into the hands of those States that have opposed the Declaration from the beginning. As an aspirational document, the Declaration serves to reinforce, not diminish, the inherent and inalienable human rights of Indigenous peoples.

First Peoples Human Rights Coalition

Suzanne Jasper
Director
First Peoples Human Rights Coalition
firstpeoplesrights@earthlink.net

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