For various reasons, the League of Nations failed in its commitment to retain world peace; the world once again descended into war and rights of any kind were forgotten in the absolute devastation of World War 2. After the Second World War the international community strengthened and became determined to develop a new world order that incorporated a recognised system of rights that were focused on basic rights of the individual or, human rights.
Minority rights became less credible after the Second World War as they were seen as inherently political in nature and thus could develop into further disruption to fledgling world peace, whereas basic human rights, applicable to all people would cause less animosity between cultures. Eventually, as the United Nations expanded and grew to encompass more areas of international cooperation and as this happened, more rights were to be recognised by the international community: rights such as human rights and ultimately, minority rights once again.
Minority rights were recognised and established once again under the International Covenant on Civil and Political Rights, a multilateral treaty, adopted by the United Nations General Assembly in 1966; however, it came into force ten years later in 1976. The ICCPR encompassed many rights such as the right to life, freedom of speech, religion, assembly and the right for all peoples to self-determination.
Yet, the political demands and the challenges faced by minorities were and are inherently different in nature to the ones that are faced by indigenous peoples; a fact recognised by Erika-Irene Daes, the former Chairman of the UN Working Group on Indigenous Peoples, when she commented:
“the principle legal distinction between the rights of minorities and indigenous peoples in contemporary international law is with respect to internal self-determination: the right of a group to govern itself within a recognized geographical area, without State interference”
Therefore, it may be said at a basic level the rights of a minority are essentially for cultural protection and to prevent discrimination, whereas rights of indigenous peoples may be thought of as not just a right to cultural security, but a right to self-determination or government at a micro level. This may also be reflected in the basic distinction between minority peoples and indigenous peoples: this being that indigenous peoples are inherently connected, culturally, economically and spiritually to territory, while minorities are not, and are perhaps more likely to have a unique system of social organisation different from the majority. However, this is not to say that minority rights were unhelpful to indigenous peoples, even though their concerns were not directly addressed by them. This is evidenced by the cases such as the Lubicon Lake Band case; where the Band alleged a violation of its collective right to self-determination under Article 1; the Human Rights Committee held that this was unavailable to them but Article 27 could be applied. Thus, it seemed that where an indigenous community were numerically lesser than the population of the State, they were and are entitled to claim minority rights under Article 27 of the ICCPR.
The modern challenges faced by indigenous communities are vast and variable in nature; some are specific to one community while others may more or less be inherent in any indigenous community. Many face discrimination or being displaced for modern development or mineral exploration, while more, if not most, face the threat of cultural genocide.
Various organizations exist to promote indigenous peoples rights, and indigenous societies have often banded together to form bodies which jointly seek to further their shared interests such as the World Council of Indigenous Peoples, who first met in Canada in 1975 and have representation to the UN. There are many non-governmental organizations, such as Indigenous Peoples Survival Foundation and Minority Rights Group International that have also worked tirelessly on behalf of indigenous peoples. Yet it may be said that without recognition by the United Nations any recognition of rights could not be fully realised.
The UN first acknowledged indigenous peoples in 1957 when the International Labour Organisation adopted convention 107. However, it may be said that this only provided limited protection for indigenous and tribal populations. Later in 1989, the ILO adopted Convention 169 which came into force in 1991. The convention recognises a number of collective rights, but failed in recognising any right of territorial self-government for indigenous peoples.
Nonetheless, indigenous peoples and their interests were represented in the United Nations primarily through the mechanisms of the Working Group on Indigenous Populations which was first established in 1982. This group was primarily concerned with the human rights standards of indigenous peoples and it may be argued that it was long overdue that The UN established an internal body to monitor indigenous people’s rights. However, in October 2008, the WGIP was disbanded and replaced by The Expert Mechanism on the Rights of Indigenous Peoples created by The Human Rights Council. Perhaps the most influential internal body of The UN concerned with indigenous people’s rights is The United Nations Permanent Forum on Indigenous Issues. Established in 2000, this is an advisory body to the Economic and Social Council with a mandate to review issues faced by indigenous communities. Later, in 2004 the General Assembly proclaimed 2005-2014 to be the Second International Decade of the World’s Indigenous Peoples. But it was not until 2007 that any real step was taken to protect the rights of indigenous peoples that included the right of self-determination, under Article 3.
In September 2007, after a process of preparations, discussions and negotiations dating back to 1982, the General Assembly adopted the Declaration on the Rights of Indigenous Peoples. The non-binding declaration outlines the individual and collective rights of indigenous peoples, as well as their rights to identity, culture, language, employment, health, education and other issues. The 2007 Declaration avoids defining what constitutes indigenous, and this may be seen as a pragmatic step and indeed was the preferred direction taken by the African Commission on Human and Peoples Rights when in 2006, its Working Group on Indigenous Communities stated that it is unnecessary and unhelpful to formulate a definition; this flexibility will lead to claims of infringements being looked at on a case by case basis and perhaps will avoid the trap of lumping indigenous peoples into one group which ignores the vast amounts of diversity among them. However it can be seen from the Declaration that certain characteristics can be inferred to recognise an indigenous community and that most important amongst them is a connection with territory.
In conclusion, it can be forcefully argued that the rights of indigenous peoples have only recently been safeguarded and that previously the only recognised protection offered was under Article 27 of the ICCPR. Indigenous peoples, when numerically inferior, are entitled to rights under minority instruments but, as already addressed, under many circumstances the needs of a minority community are different to an indigenous community. Whether the 2007 Declaration will actually prove to be adequate will only be seen in years to come, but it may be said to be a step in the right direction. However, it is important to remember that the 2007 Declaration on the Rights of Indigenous Peoples is only a manifestation of soft law and as such will not bind any member State from disregarding its obligations under it and as such only time will tell if it will serve its purpose.
2,492 words including discursive footnotes.
Bibliography
Treaties
Treaty on the Protection of National Minorities
UN Declarations and Resolutions
International Covenant on Civil and Political Rights adopted by the on December 16, 1966.
The UN General Assembly Resolution A/RES/59/174
Universal Declaration of Human Rights adopted by the on December 10, 1948.
United Nations Declaration on the Rights of Indigenous Peoples adopted by the United Nations General Assembly on 13 September 2007 UN GA Resolution 61/295
Books
ANAYA, S. J. 2004. Indigenous Peoples in International Law. 2nd edition. New York: Oxford University Press.
CASSESE, A. 2005. International Law 2nd edition. Oxford: Oxford University Press.
MEIJKNECHT, A. 2001. Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law. Antwerp: Hart Intersentia.
THORNBERRY, P. 2002. Indigenous Peoples and International Law. Manchester: Manchester University Press.
TURNBULL, C. 1948. Black war: the extermination of the Tasmanian Aborigines. Melbourne: Cheshire.
SHAW, M. N. 2008. International Law 6th edition. Cambridge: Cambridge University Press.
WHEATLEY, S. 2005. Democracy, Minorities and International Law. Cambridge: Cambridge University Press.
Cases
Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984, UN Doc. CCPR/C38/D/167/1984
R. L. Et al. v. Canada, Communication No. 358/1989, UN Doc. CCPR/C/40/D/358/1989
Chapters in Edited Book
In: CASTELLINO, J. and WALSH, M. (eds) 2005. International Law and Indigenous Peoples. Leiden: Martinus Nijhoff Publishers.
In: CONNOLLY, A. J. (ed) 2009. Indigenous Rights. Farnham: Ashgate Publishing Ltd.
Journal Articles and Research Papers
DAES. E. I and ASBJORN, E. 2000. Working paper on the relationship and distinction between the rights of persons belonging to minorities and indigenous peoples. UN Doc. E/CN.4/Sub.2/2000/10 19th July 2000.
Websites
BBC News [Online]. [Accessed 10th January 2010]. Available from World Wide Web:
Indigenous Peoples Survival Foundation: http://www.indigenouspeople.org/
International Work Group for Indigenous Affairs: estimates of population of indigenous peoples: [Online]. [Accessed 7th January 2010]. Available from World Wide Web:
Minority Rights Group International: http://www.minorityrights.org/
Working Group on Indigenous Communities ACHPR Website [Online]. [Accessed 10th January 2010]. Available from World Wide Web: http://www.achpr.org/english/_info/wgip_res.htm
Estimates from International Work Group for Indigenous Affairs: [Online]. [Accessed 7th January 2010]. Available from World Wide Web: http://www.iwgia.org
Such as the indigenous populations of the Americas, Australasia, Africa and even northern Europe
Many consider the conflict between the British and the indigenous Tasmanians, known as the Black War, as one of the world’s earliest cases of modern genocide: TURNBULL, C. 1948. Black war: the extermination of the Tasmanian Aborigines. Melbourne: Cheshire
The development of international law in general is outside the ambit of this paper, thus, the topic will not be looked into in the detail required.
Named so after Woodrow Wilson the former President of the United States during WW1
League of Nations Treaty on the Protection of National Minorities, which conferred basic rights on all the inhabitants of the country without distinction of birth, nationality, language, race or religion and protected the rights of all nationals of the country who differed in race, religion, or language from the majority of the inhabitants of the country.
In fact, President Woodrow Wilson warned that: ‘nothing is more likely to disturb the peace of the world than the treatment which might, in certain circumstances be meted out to the minorities…’ As quoted in: THORNBERRY, P. 2002. Indigenous Peoples and International Law. Manchester: Manchester University Press.
Universal Declaration of Human Rights adopted by the on December 10, 1948 in .
Article 1, International Covenant on Civil and Political Rights
DAES. E. I and ASBJORN, E. 2000. Working paper on the relationship and distinction between the rights of persons belonging to minorities and indigenous peoples. UN Doc. E/CN.4/Sub.2/2000/10 19th July 2000. At 43
Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984, UN Doc. CCPR/C38/D/167/1984
Article 1 of International Covenant on Civil and Political Rights
Which States: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”
Article 27 of International Covenant on Civil and Political Rights
A recent example is found in Kenya where the Enderois, a small pastoral community, have been displaced by the Kenyan government for development purposes.
Indigenous and Tribal Populations Convention 1957, ILO C-107
Indigenous and Tribal Peoples Convention 1989, ILO C-169
WHEATLEY, S. 2005. Democracy, Minorities and International Law. Cambridge: Cambridge University Press. At p.115.
The United Nations Website [Online]. [Accessed 10th January 2010]. Available from World Wide Web: http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/index.htm
The UN Permanent Forum on Indigenous Issues, United Nations Website: [Online]. [Accessed 10th January 2010]. Available from World Wide Web: http://www.un.org/esa/socdev/unpfii/
The UN General Assembly Resolution A/RES/59/174
The first Decade ran from 1995-2004. The main goal of the new decade will be to strengthen international cooperation around resolving the problems faced by indigenous peoples in areas such as culture, education, health, human rights, the environment, and social and economic development.
However, Article 3 created much tension amongst certain members of the General Assembly.
United Nations Declaration on the Rights of Indigenous Peoples adopted by the United Nations General Assembly on 13 September 2007 UN GA Resolution 61/295
Four nations with significant indigenous populations voted against the declaration: the United States, Canada, New Zealand and Australia. Eleven nations abstained: Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Samoa, Russia and Ukraine. Thirty-four nations did not vote.
Working Group on Indigenous Communities ACHPR Website [Online]. [Accessed 10th January 2010]. Available from World Wide Web: http://www.achpr.org/english/_info/wgip_res.htm