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Indigenous peoples in the United Nations
States are on the back foot
By JR Hmar
As the 58th session of the United Nations Commission on human rights enters its final phase of debate, it is deliberating on civil political rights issues. One of the last issues that the commission will be debating upon is the question of indigenous peoples and their rights. This year, the debate assumes special significance for two specific reasons, coming as it within the looming historic inaugural session in May of the newly established Permanent Forum on Indigenous Issues at the level of the Economic and Social Council (ECOSOC). The permanent forum is virtually the tenth functional commission of ECOSOC. Secondly, the commission's newly appointed special rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Dr Rodolfo Stavenhagen, have submitted his first report.
In a region such as ours and specifically for Manipur, which is populated by such an overwhelming majority of distinct groups indigenous to the state, these recent developments in the United Nations needs to be monitored and understood.
The first Stavenhagen report: When the commission decided last year to establish a mechanism at its level to protect and monitor the respect and enjoyment of the human rights of indigenous people, it gave the Special Rapporteur's post a range of specific functions. Stavenhagen, during his initial three-year tenure, is charged "[to] gather, request, receive and exchange information and communications from all relevant sources..." including indigenous peoples themselves, on violations of their human rights and fundamental freedoms.
Further, he is "[to] formulate recommendations and proposals (to the Commission) on appropriate measures and activities to prevent and remedy" such violations. And, he is requested to "[work] closely with other special rapporteurs, special representatives, working groups and independent experts of the commission and of the sub-commission." The commission has also invited him to give special attention to the gender perspective and human rights violations of indigenous children while carrying out his mandate.
Stavenhagen's report, which comes in two parts, is interesting reading indeed. The first part deals with his views on the main human rights issues besetting indigenous people at the present time, giving consideration to appropriate ways of dealing with human rights concerns brought to his attention by ensuring that there is no "protection gap" in processing human rights complaints, and to set out a framework and agenda for his activities in the future. The report also outlines his future activities and states that he hopes to elaborate on some of the points not satisfactorily covered in his report during his oral presentation to the commission.
In discussing the major issues identified by Stavenhagen as problematic to the situation of indigenous peoples, he has categorized them under three major groups; (1) land rights, (2) homelands and territories and (3) education and culture. Interestingly, in his categorization of the issues, the special Rapporteur has included very hard political issues such as self determination and autonomy within the last category of education and culture! Under the issues of land rights, homelands and territories of indigenous peoples, which he acknowledges as indivisibly, linked to the core survival issues of their cultural and social identities, the special Rapporteur asks how state can and should they coexist with the notion of indigenous territories. Are these notions incompatible? To what extent is the idea of legally recognized indigenous homelands a necessary ingredient for the full enjoyment of the range of human rights by indigenous peoples? According to him, these are still open and debated questions, and answers will vary according to region and country.
To the outstanding questions of how constructive arrangements can be found to reconcile the legitimate concerns of states regarding territorial integrity and national unity, and the equally legitimate concerns of indigenous peoples regarding their collective survival as peoples linked to the earth in myriad ways, within an international system made up of sovereign states, he says that he intends to pursue these questions in the future. He intends to visit various regions and indigenous territories in this pursuit and we should ensure that he has a chance to visit India's north eastern region.
To couching of the issue of self-determination, in the report, within the rather non-controversial categorization of education and culture reveals, to some extent, the conceptual problems that Stavenhagen has had to grapple with without much success. And he has attempted to approach it cautiously in his report–a kind of testing the waters. This is because "self-determination" was already a heated international debate for almost a century before indigenous people's claims to it came into the picture. Negotiations at the recently concluded world conference against Racism stalled for many reasons, and the issue of self-determination was one of the important reasons.
Another controversial issue that he wants to try to unravel is the question of a definition for indigenous peoples. As an expert in this field, Stavenhagen has some views on this but they are more of a reiteration of the existing conceptual problems than an advancement in understanding. In a paper he wrote in 1994, Stavenhagen says, "[If] the word "indigenous" refers to "origins", all human being are indigenous in some way... but the current use of the concept "indigenous" implies the idea of the original occupation of a given territory... secondly; the concept of "indigenousness" suggests a historical continuity between the original population and those who presently identify themselves as direct descendants from that population ... thirdly, are the descendants of the people that occupied a given territory when it was invaded, conquered or colonized by a foreign power or population."
There is no internationally agreed definition of indigenous peoples. The term indigenous is used interchangeably with other terms, such as "aboriginal", "native", "original", "first nations" or else "tribal" or other similar concepts. Yet the absence of an international definition does not prevent constructive action. The WGIP (Working Group on Indigenous Populations) in 1995 adopted four principles to be taken into account in any possible definition of indigenous peoples: (a) priority in time, with respect to the occupation and use of a specific territory: (b) the voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, always and institutions; (c) self-identification, as well as recognition by other groups, or by state authorities, as a distinct collectivity; and (d) an experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist. "Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups..." (ILO Convention 169, art 1, para 2). These propositions are not contested but they are also not accepted without riders.
Why states are resisting: The crucial issue that pervade the indigenous problematic, as it is called, is primarily a political one. Stavenhagen's strategy seems to be quite clearly to go cautiously, though it is not without contestable aspects from the states' perspective. He wants to begin from his mandated premise of looking at the pattern of many of these concerns, which he feels reveals that the problem of a "protection gap" between existing human rights legislation and specific situations facing indigenous people exists. As long as he is talking conventional human rights discourse, he expects little resistance as he has much to chew on his plate.
But when he begins to talk of "implications", the core issues are all bound to raise a lot of old dust. His immediate designs may be defeated, for example, if he is denied entry into many countries, especially into Asian and African countries. This is the standard defensive strategy of states with special rapporteurs seeking to dig around their backyards. India, for example, has denied entry to the Special Rapporteur on Torture. The second strategy that the state adopts is to discredit the modus operandi in the name of a continuing constructive dialogue, as it happened with the special Rapporteur for Myanmar recently.
Stavenhagen's plan of activities and reports will be received with great interest by governments and indigenous peoples. His immediate proposal is to look at issues thematically–development and its impact on indigenous peoples, implementation of national legislation, the administration of justice, cultural rights, socio-economic rights issues pertaining to indigenous women and children, participation and decision making arrangements in governance, and old and new forms of discrimination and state established measures and remedies to combat them.
He will avoid tackling headlong the issues of armed and violent struggles and conflicts for indigenous peoples' and nation's self-determination as these are clearly kept beyond his mandate. In the end, how adroitly he moves into these very relevant issues that are complicated and complex will be test of his mettle; and states defending their newly found sovereign rights in the "post-colonial" era will be further under stress. The way some Asian states are already moving into a new strategic track of undermining the commission itself is a revelation of how vulnerable they feel today under the onslaught of indigenous peoples and their just struggle.
****This
is a CORE E-Human Rights Feature****
(Courtesy:
The Imphal Free Press) |
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