Until comparatively recently the rights of indigenous peoples have not been adequately safeguarded by international law. Discuss
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Until comparatively recently the rights of indigenous peoples have not been adequately safeguarded by international law. Discuss Indigenous people are located on every continent of the world and are estimated to equate to 6% of the world's population, with an estimated 5000 distinct groups in 72 countries1. With such figures it may be alarming to think that so many people could have been failed by not having sufficient safeguards at international law. Yet, it may be said that international law has indeed failed to protect the rights of indigenous people and until relatively recently had not even recognised them with rights that are capable of being protected or enforced. This essay will attempt to outline the possible reasons for this lack of protection at international law for indigenous peoples. It will endeavour to outline the historical context of the plight to which indigenous communities have faced, the history of rights being recognised at an international level and the possible distinction between these rights and rights specific to indigenous peoples; the protection afforded by other rights recognised at international law; the recognition of indigenous communities from governmental and non-governmental organisations; definitions of who may constitute indigenous and whether this is helpful; and finally, The UN Declaration on the Rights of Indigenous Peoples of 2007. Prior to the First World War, the world was one that was very much ruled by colonial empires and imperialism since the first explorers set sail from Europe, starting in the 15th century. This rapid expansion of European colonial power had a devastating impact upon many of the indigenous communities that the Europeans came into contact.
However, it may be said that this only provided limited protection for indigenous and tribal populations. Later in 1989, the ILO adopted Convention 16919 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 peoples20. 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 Council21. 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 communities22. Later, in 2004 the General Assembly23 proclaimed 2005-2014 to be the Second International Decade of the World's Indigenous Peoples24. 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 325. 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 Peoples26.
16 Article 27 of International Covenant on Civil and Political Rights 17 A recent example is found in Kenya where the Enderois, a small pastoral community, have been displaced by the Kenyan government for development purposes. 18 Indigenous and Tribal Populations Convention 1957, ILO C-107 19 Indigenous and Tribal Peoples Convention 1989, ILO C-169 20 WHEATLEY, S. 2005. Democracy, Minorities and International Law. Cambridge: Cambridge University Press. At p.115. 21 The United Nations Website [Online]. [Accessed 10th January 2010]. Available from World Wide Web: http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/index.htm 22 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/ 23 The UN General Assembly Resolution A/RES/59/174 24 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. 25 However, Article 3 created much tension amongst certain members of the General Assembly. 26 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 27 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. 28 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 ?? ?? ?? ?? International Law Term 1 Coursework University Number: . 1
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