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International Human Rights Instruments Relevant to Indigenous Peoples

In recent decades, Indigenous Peoples have made significant progress in using the international arena to articulate and demand their rights. Following are descriptions of some of the most important international declarations and conventions on Indigenous Peoples' human rights.

International Labor Organization (ILO) Convention 169

Established in 1989, Convention 169 is the only finalized international judicial instrument that directly addresses the rights of Indigenous Peoples. As of June 2004, Convention 169 had been ratified by 17 countries. They are, in order of ratification: Norway, Mexico, Colombia, Bolivia, Costa Rica, Paraguay, Peru, Honduras, Denmark, Guatemala, Fiji, Ecuador, Netherlands, Argentina, Venezuela, Dominica and Brazil.

Convention 169 affirms that Indigenous Peoples have the same universal human rights, including the rights to liberty, equality, health and education, as anyone else. It also acknowledges Indigenous Peoples' land rights and declares that governments have a responsibility to consult Indigenous Peoples when taking actions that will affect them.

Convention 169 does not, however, affirm Indigenous Peoples' right to self-determination.

Convention 169 is binding for states that have ratified it. Each state is required to submit a report to the ILO on the implementation of the convention one year after ratification. States are required to report again two years later, and every five years after that.

United Nations and Organization of American States Draft Declarations

The UN and OAS both have draft stage documents on the rights of Indigenous Peoples.

The UN Draft Declaration on the Rights of Indigenous Peoples establishes Indigenous Peoples' right to self-determination and collective land rights. Ratification of this document is a central demand of the Indigenous movement.

  • Originally drafted in 1985 by the Working Group on Indigenous Populations, the UN Draft Declaration is the most comprehensive statement of the rights of Indigenous Peoples to date, establishing collective rights to a greater extent than any other document in international human rights law.
  • It establishes the rights of Indigenous Peoples to the protection of their cultural property and identity as well as the rights to education, employment, health, religion, language and more. It also protects the right of Indigenous Peoples to own land collectively.
  • Although States will not be legally bound by the Declaration, it will exert a considerable amount of moral force when adopted by the General Assembly.

Unfortunately however, the Declaration remains a draft - it as not yet gone into effect and currently has no legal standing. Because it is a very progressive document it is seen as very threatening by many states, and as such its progress has been stalled for several years. Many human rights experts are pessimistic about the potential of this instrument to ever be formally adopted.

Articles 3 and 4 of the UN's draft Declaration on the rights of Indigenous Peoples state:

Indigenous 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 . . . Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State."

The OAS Draft American Declaration on the Rights of Indigenous Peoples covers many of the same issues as the UN Declaration.

Indigenous Peoples' rights overlap with many other human rights. Many important Indigenous Peoples' rights are not framed in specific Indigenous Peoples' rights treaties, but are part of more general human rights instruments, including the following:

International Covenant on Civil and Political Rights (1966)

  • Article 1 of this covenant contains the self-determination clause that is so crucial for Indigenous peoples. It is because of this clause that most states resist recognizing Indigenous groups living within their territories as "peoples" - if they did, they would be forced to cede power to these groups and recognize their right to self-determination.
  • Article 27 has been particularly important as a tool for protecting the collective rights of Indigenous Peoples: "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 practice their own religion, or to use their own language."
  • The Optional Protocol to this covenant has allowed Indigenous groups to bring cases to the Human Rights Committee, often with significant results. Examples of successful cases include:
    • Kitok v. Sweden (1985): Established that economic activities can be considered part of a culture. This has extremely important implications: it means that interfering with the traditional economic activities of an Indigenous group (hunting, fishing, etc.) is a violation of their cultural rights and is an example of discrimination against a minority; hence is illegal.
    • Lubicon Lake Band v. Canada (1984): Established that the development of Indigenous land without consent is a violation of cultural rights and discrimination against a minority; hence is illegal.
      • Also illustrated that a chief could bring a case on behalf of his tribe.
      • Also established that "historical inequities" could be taken into account when addressing the cumulative effect of resource exploitation.
    • Lansman et al v. Finland AND Makrika et al v. New Zealand: The doctrine of "frozen rights" was rejected. This established that even if traditional economic activities are modernized they are still protected under Article 27.

International Covenant on Economic, Social and Cultural Rights (1976)

  • Article 1 reaffirms the right to self-determination established in the International Covenant on Civil and Political Rights.
  • Articles 2 and 6 affirm that "States Parties...undertake to guarantee that ... rights ... will be exercised without discrimination of any kind as to race, colour, ... language, religion,... national or social origin,... or other status.... The States Parties ... recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses...."

Convention on the Elimination of All Forms of Racial Discrimination (1966)

  • "Racial discrimination" is defined as "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life." (Article 1)
  • The CERD monitoring body frequently addresses Indigenous Peoples' issues when it examines state reports, meets with delegates from the states, and issues its Concluding Observations. There are many cases in which CERD Committee's recommendations have had effects on state policies.

Convention on the Rights of the Child (1990)

The Convention contains regulations and suggestions relevant to Indigenous Peoples on the non-discrimination of children (Article 2), the broadcasting of information by the mass media in minority languages (Article 17), the right to education on human rights and on a group's own cultural identity, language and values. (Article 29) Article 30 states that children of minorities or indigenous origin shall not be denied the right to their own culture, religion or language. (Article 30)

Rio Declaration of Environment and Development and Agenda 21 (1992)

These two documents are connected to the Earth Summit in Rio de Janeiro. In them, the special relationship between Indigenous Peoples and their lands is acknowledged. Indigenous Peoples have a vital role in environmental management and development because of their traditional knowledge and practices. (Rio Declaration, Principle 22) In order to fully make use of that knowledge, some Indigenous Peoples might need greater control over their land, self-management of their resources and participation in development decisions affecting them. (Agenda 21, Chapter 26.4)

World Bank Operational Directive (1991)

This Operational Directive outlines the World Bank's definition of and interest in Indigenous Peoples. It also addresses economic issues (technical assistance and investment project mechanisms) concerning Indigenous Peoples. The Bank's narrow definition of Indigenous Peoples and ambiguity concerning its role in their economic development has resulted in much criticism from Indigenous Peoples' human rights advocates. Consequently, the World Bank is currently in the process of revising it. A draft of the new Directive 4.10 is available on the World Bank website.

Other Relevant Instruments:

  • Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (1992)
  • Vienna Declaration and Programme of Action (1993) (the closing declaration of the 1993 World Conference on Human Rights)
  • Report of the International Conference on Population and Development (1994)
  • Durban Declaration and Programme of Action (2001) The Durban Declaration and Programme of Action has a specific section dealing with Indigenous Peoples issues. Perhaps more important than all the recommendations is the fact that the Declaration is the first United Nations document that uses the phrase "Indigenous Peoples" rather than "Indigenous People."

Independent Declarations

In addition to working through existing international bodies, Indigenous Peoples have begun to create their own spaces where they can articulate their needs and demand respect for their human rights. These spaces, where Indigenous Peoples themselves have complete control over the agenda and framework of discussion, allow Indigenous Peoples to collaborate on their own terms without having to conform to already-established procedures or agendas.

These include:


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