WCAR Think Papers*
A joint project of Human Rights Documentation Center (HRDC),
International Service for Human Rights (ISHR) and South Asia Human Rights
Documentation Centre (SAHRDC)
Looming over the 2001 World
Conference Against Racism (WCAR) will be the question whether a similar world
conference will be held in the near future to address the human rights of
indigenous peoples. The answer will depend on whether the international
community has the vision and political willpower to make that a reality.
Established by General Assembly Resolution 48/163, the International Decade of
the World’s Indigenous People ends in 2004. Although some progress at the
United Nations has been made in recent years, a great deal of work remains. The
WCAR offers a significant opportunity in this regard. While this Think Paper
addresses various issues concerning the rights of indigenous peoples at the WCAR,
it should not distract from the most important and realizable goal: inclusion
of a political commitment in the final text of the WCAR to convene a
World Conference on the Rights of Indigenous Peoples. That said, there are
a number of other advances that can be made this year in Durban.
One
of the world’s worst problems in the area of racial discrimination is the
suffering caused to indigenous peoples. The Regional Preparatory Conference for
the Americas, for example, admirably acknowledged that “the indigenous peoples
of the Americas have been victims of discrimination for centuries”. In 2000,
the Sub-Commission’s Working Group on Indigenous Populations submitted a report
describing the continuing victimization of indigenous children in the areas of
armed conflict, health care, administration of justice, unemployment,
education, child labour and sexual exploitation (E/CN.4/Sub.2/AC.4/2000/2). The
Special Rapporteur on Contemporary Forms of Racism has brought attention to
reported violations of the rights of indigenous peoples in several States
including Australia (E/CN.4/1997/71), Brazil
(E/CN.4/1996/72/Add.1), Colombia (E/CN.4/2001/21; E/CN.4/1997/71/Add.1;
E/CN.4/1995/78), Costa Rica (E/CN.4/2000/16), and the United States
of America (E/CN.4/1995/78/Add.1). The human rights treaty bodies have also
found abuses committed against indigenous peoples in every region
of the world. In Resolution 1993/30, the Commission on Human Rights recommended
to all Thematic Rapporteurs to pay particular attention, within the framework
of their mandates, to the situation of indigenous peoples. Perhaps due to
limited resources, the rapporteurs have generally failed in that task.
The range of concerns of indigenous
peoples’ rights are vast and the nature of the solution politically
challenging. Accordingly, the eight-day WCAR will prove completely inadequate
to address indigenous peoples’ issues given the extent of other topics to be addressed
at the forum. The alternative -- continued standard-setting procedures at the
UN -- has proven painstakingly slow. What is clearly needed is a world
conference on indigenous peoples’ rights to excel the international exchange of
ideas and political progress in this area.
The UN has been working on a Draft
United Nations Declaration on the Rights of Indigenous Peoples
(E/CN.4/SUB.2/RES/1994/45), but with only two Articles of the Draft
Declaration adopted after nearly twenty years of effort, that
process may best be described as stalled. In 1982, the Working Group on
Indigenous Populations, a subsidiary of the then-Sub-Commission on the
Prevention of Discrimination and Protection of Minorities, began drafting the
United Nations Declaration on the Rights of Indigenous Peoples. The draft was
completed in 1993 and forwarded by the Working Group to the Sub-Commission. The
Sub-Commission adopted the draft in 1994 and forwarded the text to the
Commission on Human Rights (Ibid). In 1995, the Commission on Human Rights
established “as a matter of priority” an Open-ended Working Group to
elaborate the Draft Declaration (E/CN.4/RES/1995/32, para. 1 (3 Mar. 1995)).
Six years later, as mentioned, only two articles have been adopted.
Astonishing.
This vacuum of international standards has not
been filled by other efforts. The ILO Indigenous and Tribal Peoples
Convention (No. 169) has received a dismal fourteen ratifications (Argentina,
Bolivia, Colombia, Costa Rica, Denmark , Ecuador, Fiji, Guatemala, Honduras,
Mexico, Netherlands, Norway, Paraguay and Peru). The Declaration and Programme of Action
for the Second World Conference to Combat Racism and Racial Discrimination
provided some fairly strong statements regarding the promotion and protection
of the rights of indigenous populations (UN Pub., Sales No. E.83.XIV.4, chap
II, paras. 34-37). However, its dissemination and impact have been lacking. We
wonder how many readers of this Think Paper --
notably, individuals who have an interest in the subject -- know what
that document stated. This may be no fault of their own. One can search
throughout the High Commissioner’s website and -- despite requests from members
of our organizations to post the Declarations and Programmes of Action from the
two previous world racism conferences -- you won’t find them.
Two
positive developments have occurred in the last few years on the issue of
indigenous peoples’ rights. First, in 1997, the Committee on the Elimination of
Racial Discrimination issued General Recommendation XXIII on the rights
of indigenous peoples (See Box). Second, in 2000, the Economic and Social
Council (ECOSOC) established, as a subsidiary body, the Permanent Forum for
Indigenous Issues.
General Recommendation XXIII on the rights of
indigenous peoples
Committee on the Elimination of Racial Discrimination
(Fifty-first session, 1997)
Para. 4. The Committee
calls in particular upon States parties to:
(a) Recognize and respect indigenous
distinct culture, history, language and way of life as an enrichment of the
State’s cultural identity and to promote its preservation;
(b) Ensure that members of indigenous peoples are
free and equal in dignity and rights and free from any discrimination, in
particular that based on indigenous origin or identity;
(c) Provide indigenous peoples with conditions
allowing for a sustainable economic and social development compatible with
their cultural characteristics;
(d) Ensure that members of indigenous peoples have
equal rights in respect of effective participation in public life and that no
decisions directly relating to their rights and interests are taken without
their informed consent;
(e) Ensure that indigenous communities can
exercise their rights to practise and revitalize their cultural traditions and
customs and to preserve and to practise their languages.
Para. 5. The Committee
especially calls upon States parties to recognize and protect the rights of
indigenous peoples to own, develop, control and use their communal lands,
territories and resources and, where they have been deprived of their lands and
territories traditionally owned or otherwise inhabited or used without their
free and informed consent, to take steps to return those lands and
territories. Only when this is for
factual reasons not possible, the right to restitution should be substituted by
the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of
lands and territories.
The effort to establish the Permanent Forum
was, in classic UN style, unnecessarily delayed. In 1993, the Vienna
Declaration and Programme of Action called for the United Nations to consider
“establishment of a permanent forum for indigenous people in the United Nations
system” (A/CONF.157/24, Part I, para. 32). In Resolution 48/163 of 21 December
1993, the General Assembly requested the Commission on Human Rights to give “priority
consideration” to the establishment of the permanent forum. No such luck.
It would take seven years before the Commission would finally approve the
establishment of such an institution. Admittedly, time had to be allocated for
meaningful consultation and deliberation. However, in the last few years, when
a permanent forum was finally in sight, the delegation from India,
with support from the United States of America, engaged in calculated
foot-dragging. Despite appeals from the Chairperson-Rapporteur of the
Commission’s Inter-Sessional Ad Hoc Working Group, the Indian delegation
repeatedly sought “procedural clarifications” rather than engaging in debate on
the remaining substantive issues. Despite this obstruction, in 2000, the
Commission on Human Rights voted to establish the Permanent Forum
(E/CN.4/RES/2000/87 (28 April 2000)), and, three months later, ECOSOC approved
that decision (Resolution 2000/22 (28 July 2000)). According to the ECOSOC
Resolution, the Permanent Forum on Indigenous Issues “shall serve as an
advisory body to the Council with a mandate to discuss indigenous issues within
the mandate of the Council” (Ibid, at para. 2). This includes “provid[ing]
expert advice and recommendations;” “rais[ing] awareness and promot[ing] the
integration and coordination of activities relating to indigenous issues within
the United Nations system;” and “prepar[ing] and disseminat[ing] information on
indigenous issues” (Ibid).
While the establishment of the Permanent Forum
must be viewed as progress, the resources and administrative support committed
to it have been criticised by prominent indigenous peoples’ organizations. In
their respective regional declarations, indigenous peoples organizations have
called for a modest but separate secretariat to be attached to the Permanent
Forum to give the institution the special and continual attention it deserves.
Separate secretariats are attached, for example, to UNICEF, FAO and the
Commission on Human Settlements, a Standing Committee of ECOSOC established by
an ECOSOC resolution. However, Government representatives, especially those of
the United States of America, have cited financial and procedural
considerations as grounds for rejection. On 22 February 2000 during the Second
Working Group on the establishment of the Permanent Forum, Mr. Giuliano Comba,
representative of the Administration Section of the OHCHR, provided information
on the budgetary implications of the Permanent Forum. He explained that a
separate secretariat with a staff of five persons would cost approximately $1.5
million (E/CN.4/2000/86, para. 30) – not that much by UN standards.
Nevertheless, a separate secretariat was rejected and the OHCHR has maintained
the responsibility over the Permanent Forum.
Problems
in this arrangement have already arisen. The OHCHR’s website on the
Forum is not even updated to reflect the fact that the Permanent Forum has been
established (See www.unhchr.ch/html/menu2/10/c/ind/ind_sub.htm#forum). Much
more important are issues concerning the nomination process for the Permanent
Forum. The Forum provides 8
seats for representatives of indigenous peoples. Through the Indigenous
Peoples Caucus, a
representative body of indigenous peoples organizations working on the Forum at
the UN, regional meetings have been devised to recommend indigenous
experts to the Forum and agreements have been reached across the regions for
representative-sharing mechanisms. However, a circular from the OHCHR on 26
February 2001 subverts that wider consultative process by fashioning a
different method for individual organizations to petition the OHCHR directly.
The circular was disseminated without proper consultation with the indigenous
representatives and, reportedly, without OHCHR staff properly informing the
High Commissioner of the ongoing initiatives of indigenous peoples
organizations in the nomination process. These are simply not problems one
would expect to occur if a separate secretariat dedicated to the Permanent
Forum were established.
Representatives of indigenous peoples at the
WCAR will be calling attention to the problems faced by their communities and
for positive international action. Backroom discussions will concern various
proposals for adoption in the final Declaration and Programme of Action. This
Think Paper suggests the following language for inclusion in the final text.
1. The members of the World
Conference commit themselves to convening a
World Conference on the Rights of
Indigenous Peoples
in commemoration of the conclusion of the International Decade of the World’s
Indigenous People.
2. The World Conference urges States
and the United Nations system, in consultation with indigenous peoples, to take
all necessary administrative and budgetary measures to provide the Permanent
Forum with a separate secretariat at the earliest possible date.
3. The World Conference urges the
Commission on Human Rights to finalize the Draft Declaration on the Draft
United Nations Declaration on the Rights of Indigenous Peoples by 2004
to mark the conclusion of the International Decade of the World’s Indigenous
People.
4. The World Conference recommends
the Commission on Human Rights to establish a Special Rapporteur on the
Rights of Indigenous Peoples. [Editor's Note: After this Think Paper went
to press, on 24 April 2001, the Commission on Human Rights created a three-year
term mandate for a Special Rapporteur (E/CN.4/RES/2001/57).]